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Corte di giustizia UEsentenza

Corte di giustizia UE n. 2017/2026

ECLI:EU:T:2026:469
Testo integrale del provvedimento

Testo integrale del provvedimento

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

15 July 2026 ( * ) ( EU trade mark – [OSCURATO:PERSONA] proceedings – Application for the EU figurative mark go VEGE – Earlier EU word mark végé’ – Relative ground for refusal – Likelihood of confusion – [OSCURATO:PERSONA] 8(1)(b) of Regulation (EU) 2017/1001 )

[OSCURATO:PERSONA] T‑677/25,

Desimo, Lda., established in Lisbon (Portugal), represented by J. Mioludo, lawyer, applicant, v

[OSCURATO:PERSONA] (EUIPO),

represented by T. Frydendahl, acting as Agent, defendant, the other party to the proceedings before the [OSCURATO:PERSONA] of Appeal of EUIPO, intervener before the [OSCURATO:PERSONA], being Topas GmbH, established in Mössingen (Germany), represented by S. Hofmann, lawyer,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of M. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA], J. [OSCURATO:PERSONA] and W. [OSCURATO:PERSONA], [OSCURATO:PERSONA],

[OSCURATO:PERSONA]: V. [OSCURATO:PERSONA],

having regard to the written part of the procedure, having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to [OSCURATO:PERSONA] 106(3) of the Rules of Procedure of the [OSCURATO:PERSONA], gives the following

[OSCURATO:PERSONA]

1 By its action under [OSCURATO:PERSONA] 263 TFEU, the applicant, Desimo, Lda., seeks the annulment and alteration of the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 28 July 2025 ([OSCURATO:PERSONA] R 201/2025-5) (‘the contested decision’).

Background to the dispute 2 On 21 February 2019, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign, claiming the colours Pantone 356C and Pantone 376: 3 The mark applied for covers goods and services in, inter alia, Classes 29, 30 and 35 of the [OSCURATO:PERSONA] the [OSCURATO:PERSONA] of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding, inter alia, for each of those classes, to the following description: – Class 29: ‘Vegetarian charcuterie; Fish, seafood and shellfish (not live); Crustaceans, not live; Extracts for soups; Fish extracts; Vegetable extracts for cooking; Seafood extracts; Processed fungi and vegetables (including nuts and pulses); Potato-based snack foods; Vegetable pastes; Fish spread; Seasoned nuts; Milk; Coconut milk [beverage]; Rice milk; Almond milk; Oat milk; Butter; Butter made of nuts; Drinks made from dairy products; Milk products; Margarine; Soft-ripened cheeses; Ripened cheeses; Cheese spreads; Soft white cheese; Sheep cheese; Cream [dairy products]; Kephir [milk beverage]; Yoghurt; Yoghurt desserts; Drinking yogurts; Fruit flavoured yoghurts; Oils for food; Edible fats; Coconut oil for food; Olive oil; Luncheon meats; Preserves, pickles; Soup powders; Canned soups; Prepared salads; Vegetable salads; Prepared meals consisting principally of vegetables; Vegetarian sausages; Processed vegetables; Legume-based spreads; Vegetable-based spreads; Meat substitutes; Butter substitutes; Drinks based on yogurt; Prepared vegetable dishes; Hummus [chickpea paste]; Soy-based snack foods; Tofu-based snacks; Tofu; Soya patties.’ – Class 30: ‘Food mixtures consisting of cereal flakes and dried fruits; Dairy confectionery; Ice creams, frozen yogurts; Pasta-based prepared meals; Rice-based prepared meals; Muesli desserts; Prepared desserts [confectionery]; Vegan cakes; Breakfast cereals; Cereal bars and energy bars; Ready-to-eat cereals; Maize flakes; Crisps made of cereals; Multigrain-based snacks; Muesli snacks; Cereal-based snack food; Rice-based snack food; Muesli; Muesli bars; Pizzas [prepared]; Sandwiches; Confectionery ices; Mousse confections; Pastries; Ice cream; Puddings; Prepared rice dishes; Instant porridge; Dry and liquid ready-to-serve meals, mainly consisting of rice; Snack food products made from soya flour; Custard-based fillings for cakes and pies; Bread biscuits.’ – Class 35: ‘Retail services relating to food’. 4 On 14 June 2019, the intervener, Topas GmbH, filed a notice of opposition to registration of the mark applied for in respect of all the goods and services covered by that mark. 5 The opposition was based on the earlier EU word mark végé’, applied for on 13 January 2017 and registered on 31 August 2020, covering goods in Classes 29 and 30 and corresponding, for each of those classes, to the following description: – Class 29: ‘Vegetarian and vegan alternatives to meat, meat goods, sausages, charcuterie and ready meals consisting predominantly of meat or sausage; Meat alternatives, namely vegetarian or vegan products resembling meat, in particular sausages and charcuterie, products resembling sausages and meat, and rissoles; Plant-based meat, fish, game and poultry substitutes, and goods made therefrom in fresh, frozen, smoked and semi-prepared form, in particular meat substitutes based on plant proteins; Lupins and Lupin protein; Seitan (meat substitute); Soya and wheat protein (gluten) preparations being meat alternatives; Dairy products and substitutes therefor, in particular cheese alternatives and cheese substitutes not consisting of dairy products, vegan cheese, vegan cheese preparations and vegan cheese additives; Ready meals and semi-prepared meals consisting predominantly of meat substitutes’; – Class 30: ‘Plant-based ready meals’. 6 The ground relied on in support of the opposition was that set out in [OSCURATO:PERSONA] 8(1)(b) of Regulation (EU) 2017/1001 of the [OSCURATO:PERSONA] and of the Council of 14 June 2017 on the [OSCURATO:PERSONA] trade mark (OJ 2017 L 154, p. 1). 7 On 30 January 2024, the [OSCURATO:PERSONA] upheld the opposition in part in respect of the goods and services referred to in paragraph 3 above. 8 On 26 March 2024, the applicant filed a notice of appeal with EUIPO against the [OSCURATO:PERSONA] decision in so far as that division refused its application for registration of the mark applied for. 9 By decision of 19 November 2024, the [OSCURATO:PERSONA] of Appeal, having identified an inconsistency in the reasoning, annulled the [OSCURATO:PERSONA] decision and remitted the case to it. 10 On 29 November 2024, the [OSCURATO:PERSONA] upheld the opposition in part in respect of the goods and services referred to in paragraph 3 above. 11 On 29 January 2025, the applicant filed a notice of appeal with EUIPO against the [OSCURATO:PERSONA] decision in so far as that division refused its application for registration of the mark applied for. 12 By the contested decision, the [OSCURATO:PERSONA] of Appeal stated that the applicant was seeking annulment of the [OSCURATO:PERSONA] decision only in so far as that division refused its application for registration of the mark applied for.

In that regard, it considered, inter alia, that the [OSCURATO:PERSONA] had not erred in finding that there was a likelihood of confusion on the part of the relevant public in respect of all the goods and services referred to in paragraph 3 above.

Forms of order sought 13 The applicant claims, in essence, that the [OSCURATO:PERSONA] should: – annul the contested decision and alter the contested decision to the effect that the opposition is rejected in its entirety; – authorise the registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above; – order EUIPO to pay the costs. 14 EUIPO contends that the [OSCURATO:PERSONA] should: – dismiss the action; – order the applicant to pay the costs incurred by EUIPO in the event that a hearing is convened. 15 The intervener contends that the [OSCURATO:PERSONA] should dismiss the action. [OSCURATO:PERSONA] jurisdiction to take cognisance of the applicant’s second head of claim 16 By its second head of claim, by which it requests that the [OSCURATO:PERSONA] authorise the registration of the mark applied for, the applicant seeks, in essence, the alteration of the contested decision. 17 In that respect, it must be found that the applicant’s second head of claim, by which it requests that the [OSCURATO:PERSONA] authorise the registration of the mark applied for in respect of all the goods and services covered by that mark, may be understood as requesting that the [OSCURATO:PERSONA] alter the contested decision within the meaning of [OSCURATO:PERSONA] 72(3) of Regulation 2017/1001 by adopting the decision that the [OSCURATO:PERSONA] of Appeal should have taken, in accordance with the provisions of that regulation.

The competent bodies of EUIPO do not, however, adopt formal decisions recording the registration of an EU trade mark which could be the subject of an appeal.

Consequently, the [OSCURATO:PERSONA] of Appeal does not have power to take cognisance of a claim that it should register an EU trade mark.

Nor, in those circumstances, is it for the [OSCURATO:PERSONA] to take cognisance of a claim for alteration requesting that it amend the decision of a [OSCURATO:PERSONA] of Appeal to that effect (see judgment of 6 May 2026,

[OSCURATO:PERSONA]

v EUIPO – [OSCURATO:PERSONA] (alma FARMACIE) , T‑480/25, not published, EU:T:2026:317, paragraph 14 and the case-law cited). 18 It follows that the applicant’s second head of claim must be rejected on the grounds of lack of jurisdiction.

Substance 19 In support of its action, the applicant puts forward, in essence, a single plea in law alleging infringement of [OSCURATO:PERSONA] 8(1)(b) of Regulation 2017/1001.

In particular, it disputes the existence of a likelihood of confusion on the part of the relevant public as regards the goods and services in respect of which registration was refused. 20 EUIPO and the intervener dispute the applicant’s arguments. 21 [OSCURATO:PERSONA] 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected.

The likelihood of confusion includes the likelihood of association with the earlier trade mark. 22 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 – [OSCURATO:PERSONA] ([OSCURATO:PERSONA])

, T‑162/01, EU:T:2003:199, paragraphs 30 to 32 and the case-law cited). 23 In the present case, the applicant does not dispute the [OSCURATO:PERSONA] of Appeal’s findings that, first, the relevant public consists of the general public and professionals in the [OSCURATO:PERSONA], whose level of attention is low to average, and, second, that the goods and services at issue are identical or similar, at least to a low degree. 24 Nor does the applicant dispute the [OSCURATO:PERSONA] of Appeal’s assessment that the earlier mark has a weak distinctive character.

The comparison of the signs 25 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 that 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). 26 Assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark.

On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment of 12 June 2007,

OHIM

v Shaker , C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment of 12 June 2007,

OHIM

v Shaker , C‑334/05 P, EU:C:2007:333, paragraph 42).

That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgment of 20 September 2007, Nestlé v

OHIM

, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).

The alleged failure to take into account the signs at issue as a whole and the distinctive and dominant elements of the mark applied for 27 The applicant complains that the [OSCURATO:PERSONA] of Appeal did not compare the signs at issue as a whole, but arbitrarily excluded from the comparison the word ‘go’ and the figurative elements of the mark applied for, in order to compare only the word ‘vege’ in the mark applied for with the earlier mark. 28 In addition, the applicant disputes the [OSCURATO:PERSONA] of Appeal’s assessment that the word ‘vege’ is the dominant element of the mark applied for. 29 [OSCURATO:PERSONA] of Appeal found that the word ‘vege’ in the mark applied for, despite its weak distinctive character in relation to the goods and services at issue, was the element which primarily caught the attention of consumers on account of its position and size.

Furthermore, it considered – without it being disputed by the applicant – that the word ‘go’ in the mark applied for could be understood by the English-speaking part of the relevant public as a motivational call or invitation to take up a vegetarian lifestyle in the context of the goods and services at issue.

It inferred from this that the word ‘go’ had a weak distinctive character.

In addition, as regards the figurative elements of the mark applied for, such as the green circle and the branch featuring leaves, the [OSCURATO:PERSONA] of Appeal found that they are generally perceived as advertising an ecological or environmentally friendly character in the context of the goods and services at issue and therefore had to be regarded as decorative and of secondary importance. 30 In the present case, in the first place, contrary to what the applicant claims, the [OSCURATO:PERSONA] of Appeal took account of the word ‘go’ and the figurative elements of the mark applied for in its visual, phonetic and conceptual comparison of the signs at issue.

Thus, it is apparent inter alia from paragraph 90 of the contested decision that the [OSCURATO:PERSONA] of Appeal found that the signs at issue differed visually in the figurative elements of the mark applied for, but that those elements were of secondary importance.

Phonetically, it considered, in paragraphs 91 and 93 of the contested decision, that the signs at issue differed in the pronunciation of the word ‘go’, but that that word had a weak distinctive character.

As regards the conceptual comparison of the signs at issue, it is apparent from paragraph 95 of the contested decision that the [OSCURATO:PERSONA] of Appeal also took account of the word ‘go’ in its analysis, when it found that English-speaking consumers, as well as consumers who have a basic understanding of English, understand the word ‘go’ in the mark applied for as a motivational call to take up a vegetarian lifestyle. 31 It is true that the [OSCURATO:PERSONA] of Appeal did not refer to the word ‘go’ in its analysis regarding the visual comparison of the signs at issue.

However, since the [OSCURATO:PERSONA] of Appeal found, without it being disputed by the applicant, that the word ‘go’ had a weak distinctive character in the mark applied for in respect of the goods and services at issue, that omission cannot, in the light of the case-law referred to in paragraphs 25 and 26 above, constitute an error of law. 32 Accordingly, the line of argument relating to the alleged failure to take into account the signs at issue as a whole must be rejected. 33 In the second place, it must be stated, as EUIPO correctly contends, that the applicant has not put forward any specific argument or evidence capable of substantiating its challenge to the [OSCURATO:PERSONA] of Appeal’s assessment that the word ‘vege’ in the mark applied for is the element which primarily catches the consumer’s attention. 34 In addition, it must be noted that, where a trade mark consists of word and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more readily refer to the goods in question by quoting the name of the mark than by describing the figurative element of that mark (see judgment of 28 September 2022,

[OSCURATO:PERSONA]

v EUIPO – Sumol + [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) , T‑572/21, not published, EU:T:2022:594, paragraph 31 and the case-law cited). 35 Moreover, the weak distinctive character of an element of a composite mark does not necessarily imply that that element cannot constitute a dominant element since it may, on account, in particular, of its position in the sign or its size, make an impression on consumers and be remembered by them (judgment of 13 June 2006, Inex v OHIM – Wiseman (Representation of a cowhide) , T‑153/03, EU:T:2006:157, paragraph 32). 36 In the present case, in view of its size and central position within the mark applied for, the [OSCURATO:PERSONA] of Appeal was entitled to find that the word ‘vege’, despite its weak distinctive character in relation to the goods and services at issue, constituted the dominant element of the mark applied for.

In addition, it must be stated that the figurative elements of the mark applied for are not so large in size, nor are they arranged in such a specific, original or elaborate manner, as to be capable of significantly influencing the overall impression conveyed by the mark applied for.

Furthermore, as regards the word ‘go’, it must be held, as the [OSCURATO:PERSONA] of Appeal found, that, in the context of the mark applied for, it has a weak distinctive character given that, for the English-speaking part of the relevant public, it may be understood as an invitation to take up a vegetarian lifestyle.

Moreover, that element is smaller than the element ‘vege’ in the mark applied for. 37 It follows from all of the foregoing that the [OSCURATO:PERSONA] of Appeal was correct in concluding that, despite its weak distinctive character, the word element ‘vege’ was the element of the mark applied for which the relevant public would remember before the other elements of that mark.

Visual similarity 38 [OSCURATO:PERSONA] of Appeal found that the signs at issue coincided in the element ‘vege’, even though that element contained two accents and an apostrophe in the earlier mark, and even though those signs differed in the figurative elements of the mark applied for.

In addition, the [OSCURATO:PERSONA] of Appeal concluded that, overall, the signs at issue had an above-average degree of visual similarity, given that, first, the word ‘vege’ was the dominant element of the mark applied for, was also placed in the centre of the earlier mark and was written in a larger font in the mark applied for, and, second, the figurative elements of the earlier mark were of secondary importance. 39 The applicant submits, in essence, that there are visual differences between the signs at issue.

Their different stylisations, arrangements, lengths and colours attract the attention of consumers and are sufficient to distinguish them.

Furthermore, it maintains that the visual similarity between the signs at issue is limited solely to the word ‘vege’ and that that word is not exactly the same in those signs since, in the earlier sign, both letters ‘e’ have an acute accent. 40 According to settled case-law, where a figurative mark containing word elements is visually compared with a word mark, the marks are considered to be visually similar if they have in common a significant number of letters in the same position and if the word element of the figurative sign is not highly stylised, notwithstanding the graphic representation of the letters in different type fonts, in italics or bold, in lower case or upper case, or in colour (see judgment of 11 October 2023, Dr. [OSCURATO:PERSONA] v EUIPO – [OSCURATO:PERSONA] (ayuna [OSCURATO:PERSONA]) , T‑490/22, not published, EU:T:2023:616, paragraph 51 and the case-law cited). 41 In the present case, it must be observed that the signs at issue coincide in the word ‘vege’.

The accents on the letters ‘e’ and the apostrophe at the end of that word in the earlier mark are not sufficient to offset the similarity found.

Moreover, since the figurative elements of the mark applied for will be perceived as decorative, the difference resulting from those elements must be minimised.

Lastly, in view of the fact that the word ‘go’ in the mark applied for is written in a smaller font than that of the word ‘vege’ and that it is weakly distinctive – a point which the applicant does not dispute – it is unlikely that it will be perceived by the relevant public.

Accordingly, the public’s attention will focus on the word ‘vege’, which dominates the overall impression of the mark applied for.

Thus, the presence of the word ‘go’ and of the figurative elements of the mark applied for is not sufficient to offset the similarity created by the overall impression given by the signs at issue. 42 Consequently, the [OSCURATO:PERSONA] of Appeal did not make an error of assessment in considering that the signs at issue had an above-average degree of visual similarity.

Phonetic similarity 43 [OSCURATO:PERSONA] of Appeal considered that the signs at issue had a degree of phonetic similarity that was higher than average.

In that regard, it found that the part of the relevant public which did not take into account the accents of the earlier mark pronounced that mark and the word ‘vege’ of the mark applied for identically.

Furthermore, in its view, for the part of the relevant public that pronounces the accents, the presence of those accents in the earlier mark might very slightly alter their pronunciation as compared with the word ‘vege’ in the mark applied for.

In addition, the [OSCURATO:PERSONA] of Appeal considered that, in view of the weak distinctive character of the word ‘go’ in the mark applied for, it was unlikely that it would be pronounced and that, in any event, even though it appeared at the beginning of the mark applied for, that word could not outbalance the phonetic impact of the following two syllables ‘ve’ and ‘ge’. 44 The applicant submits that the degree of phonetic similarity between the signs at issue is not higher than average.

In particular, it argues, first, that the mark applied for does not consist exclusively of the word ‘vege’ and, second, that the earlier mark has acute accents on the two letters ‘e’, which have an impact on the pronunciation of that word. 45 In the present case, as regards the applicant’s argument that there is a difference in accentuation, it must be observed that the [OSCURATO:PERSONA] of Appeal took that difference into account.

However, as the [OSCURATO:PERSONA] of Appeal found, only a part of the relevant public will notice the accents that are present in the earlier mark.

The part of the relevant public whose language does not contain such accents will not ascribe any importance to them and, consequently, for that part of the relevant public, the word ‘vege’ in the mark applied for and the word ‘vege’ in the earlier mark will be pronounced in exactly the same way. 46 Furthermore, the applicant does not dispute that the word ‘go’ has a weak distinctive character.

Accordingly, the public’s attention will focus on the word ‘vege’, which dominates the overall impression of the mark applied for.

Therefore, the applicant cannot criticise the [OSCURATO:PERSONA] of Appeal for having ascribed less importance to the word ‘go’ in the outcome of the phonetic comparison of the signs at issue. 47 Consequently, it must be held that the [OSCURATO:PERSONA] of Appeal did not make an error of assessment in considering that the signs at issue had a degree of phonetic similarity that was higher than average.

Conceptual similarity 48 [OSCURATO:PERSONA] of Appeal considered that the signs at issue were conceptually similar, to at least an average degree, for the English-speaking part of the relevant public.

In that regard, the [OSCURATO:PERSONA] of Appeal stated that the word ‘vege’, common to the signs at issue, is understood, at least for a part of the relevant public, as alluding to the vegetarian nature of the goods and services at issue.

Furthermore, as regards the mark applied for, the [OSCURATO:PERSONA] of Appeal found that the English-speaking part of the relevant public and the part with a basic understanding of English could, in the context of the goods and services at issue, understand that sign as referring to an invitation to take up a vegetarian lifestyle. 49 The applicant criticises the [OSCURATO:PERSONA] of Appeal for having found that the signs at issue could have similar connotations, arguing that the earlier mark will be understood as an abbreviation of the words ‘vegetal’ or ‘vegetarian’, whereas the mark applied for, through the presence of the word ‘go’, refers to a suggestion to follow a vegetarian lifestyle. 50 It must be observed that it is common ground between the parties that the earlier mark alludes to the vegetarian nature of the goods concerned and that the mark applied for will be understood as suggesting the adoption of a vegetarian lifestyle, at least for the English-speaking part of the relevant public, on account of the presence of the word ‘go’.

However, it must be pointed out that, despite the presence of the element ‘go’, the signs at issue convey a very similar concept in relation to the vegetarian nature of the goods and services at issue.

Moreover, it must also be borne in mind that the word ‘go’ is secondary in the mark applied for, in view of its weak distinctive character.

Contrary to what the applicant claims, the additional element ‘go’ in the mark applied for cannot cause the conceptual similarity of the signs at issue to be overlooked. 51 Accordingly, the [OSCURATO:PERSONA] of Appeal did not make an error of assessment in considering that the signs at issue were conceptually similar, to at least an average degree, for the English-speaking part of the relevant public.

The likelihood of confusion 52 According to settled case-law of the [OSCURATO:PERSONA] of Justice, the existence of a likelihood of confusion depends on numerous elements, in particular the recognition of the trade mark on the market, the association which can be made with the used or registered sign, and the degree of similarity between the trade mark and the sign and between the goods or services identified.

The likelihood of confusion must therefore be assessed globally, taking into account all the relevant factors of the particular case (see judgment of 12 June 2019, Hansson , C‑705/17, EU:C:2019:481, paragraph 41 and the case-law cited). 53 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, Mast-Jägermeister v OHIM – [OSCURATO:PERSONA] (VENADO with frame and others) , T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74). 54 The applicant submits that there is no likelihood of confusion given that the signs at issue are visually, phonetically and conceptually different.

In that regard, it maintains, in essence, that the degree of phonetic similarity between two marks is of less importance in the case of goods which are marketed in such a way that, when making a purchase, the relevant public usually perceives the mark designating them visually.

According to the applicant, the visual differences between the signs at issue are of particular importance.

In addition, it argues that the [OSCURATO:PERSONA] of Appeal did not take into account all the elements of which the mark applied for consists and merely compared the word element ‘vege’ in the mark applied for with the earlier mark in order to assess the likelihood of confusion. 55 First, it must be recalled that the relevant public consists of the general public and professionals in the [OSCURATO:PERSONA], whose level of attention is low to average, and, moreover, that the goods and services covered by the mark applied for are in part identical and in part similar – at least to a low degree – to the goods covered by the earlier mark. 56 Second, it follows from paragraphs 42, 47 and 51 above that the signs at issue have an above-average degree of visual and phonetic similarity and a degree of conceptual similarity which is at least average for the English-speaking part of the relevant public. [OSCURATO:PERSONA] of Appeal was therefore entitled to find that, overall, there existed a likelihood of confusion on the part of the relevant public in respect of the goods and services at issue. 57 Third, as regards the applicant’s argument that the [OSCURATO:PERSONA] of Appeal did not take into account all the elements of which the contested mark consists in order to assess the likelihood of confusion, it must be recalled, as has been stated in paragraphs 30 to 32 above, that that argument stems from a misreading of the contested decision on the part of the applicant.

Indeed, when assessing the visual, phonetic and conceptual similarity of the signs at issue, the [OSCURATO:PERSONA] of Appeal included in its comparison all the elements of which the mark applied for consists. 58 Fourth, as regards the applicant’s argument that the degree of phonetic similarity between two marks is of less importance in the case of goods which are marketed in such a way that, when making a purchase, the relevant public usually perceives the mark designating them visually, it must be observed that the [OSCURATO:PERSONA] of Appeal took that into account when it found, in paragraph 104 of the contested decision, that food products in Classes 29 and 30 were often purchased in self-service shops where the consumer selected the product himself or herself and, therefore, had to rely primarily on the image of the trade mark affixed to that product, with the result that the visual similarity between the signs was, as a general rule, of greater importance.

However, the [OSCURATO:PERSONA] of Appeal found, in that respect, that, in view of the fact that the dominant element of the mark applied for was highly similar to the earlier mark, the signs at issue had an above-average degree of visual similarity. 59 In the light of the foregoing, the single plea in law put forward in support of the applicant’s claim for annulment and alteration of the contested decision must be rejected as unfounded and, accordingly, the action must be dismissed in its entirety.

Costs 60 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure of the [OSCURATO:PERSONA], the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 61 Although the applicant has been unsuccessful, EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened.

Since no hearing has been organised, it is appropriate to order the applicant and EUIPO to bear their own costs.

Since the intervener has not applied for the applicant to be ordered to pay the costs, it must therefore bear its own costs.

On those grounds,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

hereby: 1. Dismisses the action; 2. Orders each party to bear its own costs. [OSCURATO:PERSONA] in open court in Luxembourg on 15 July 2026.

V. [OSCURATO:PERSONA]

M. [OSCURATO:PERSONA]

* Language of the case: English.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 15 July 2026 ( * ) ( EU trade mark – [OSCURATO:PERSONA] proceedings – Application for the EU figurative mark go VEGE – Earlier EU word mark végé’ – Relative ground for refusal – Likelihood of confusion – [OSCURATO:PERSONA] 8(1)(b) of Regulation (EU) 2017/1001 ) [OSCURATO:PERSONA] T‑677/25, Desimo, Lda., established in Lisbon (Portugal), represented by J. Mioludo, lawyer, applicant, v [OSCURATO:PERSONA] (EUIPO), represented by T. Frydendahl, acting as Agent, defendant, the other party to the proceedings before the [OSCURATO:PERSONA] of Appeal of EUIPO, intervener before the [OSCURATO:PERSONA], being Topas GmbH, established in Mössingen (Germany), represented by S. Hofmann, lawyer, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of M. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA], J. [OSCURATO:PERSONA] and W. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: V. [OSCURATO:PERSONA], having regard to the written part of the procedure, having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to [OSCURATO:PERSONA] 106(3) of the Rules of Procedure of the [OSCURATO:PERSONA], gives the following [OSCURATO:PERSONA] 1 By its action under [OSCURATO:PERSONA] 263 TFEU, the applicant, Desimo, Lda., seeks the annulment and alteration of the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 28 July 2025 ([OSCURATO:PERSONA] R 201/2025-5) (‘the contested decision’). Background to the dispute 2 On 21 February 2019, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign, claiming the colours Pantone 356C and Pantone 376: 3 The mark applied for covers goods and services in, inter alia, Classes 29, 30 and 35 of the [OSCURATO:PERSONA] the [OSCURATO:PERSONA] of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding, inter alia, for each of those classes, to the following description: –        Class 29: ‘Vegetarian charcuterie; Fish, seafood and shellfish (not live); Crustaceans, not live; Extracts for soups; Fish extracts; Vegetable extracts for cooking; Seafood extracts; Processed fungi and vegetables (including nuts and pulses); Potato-based snack foods; Vegetable pastes; Fish spread; Seasoned nuts; Milk; Coconut milk [beverage]; Rice milk; Almond milk; Oat milk; Butter; Butter made of nuts; Drinks made from dairy products; Milk products; Margarine; Soft-ripened cheeses; Ripened cheeses; Cheese spreads; Soft white cheese; Sheep cheese; Cream [dairy products]; Kephir [milk beverage]; Yoghurt; Yoghurt desserts; Drinking yogurts; Fruit flavoured yoghurts; Oils for food; Edible fats; Coconut oil for food; Olive oil; Luncheon meats; Preserves, pickles; Soup powders; Canned soups; Prepared salads; Vegetable salads; Prepared meals consisting principally of vegetables; Vegetarian sausages; Processed vegetables; Legume-based spreads; Vegetable-based spreads; Meat substitutes; Butter substitutes; Drinks based on yogurt; Prepared vegetable dishes; Hummus [chickpea paste]; Soy-based snack foods; Tofu-based snacks; Tofu; Soya patties.’ –        Class 30: ‘Food mixtures consisting of cereal flakes and dried fruits; Dairy confectionery; Ice creams, frozen yogurts; Pasta-based prepared meals; Rice-based prepared meals; Muesli desserts; Prepared desserts [confectionery]; Vegan cakes; Breakfast cereals; Cereal bars and energy bars; Ready-to-eat cereals; Maize flakes; Crisps made of cereals; Multigrain-based snacks; Muesli snacks; Cereal-based snack food; Rice-based snack food; Muesli; Muesli bars; Pizzas [prepared]; Sandwiches; Confectionery ices; Mousse confections; Pastries; Ice cream; Puddings; Prepared rice dishes; Instant porridge; Dry and liquid ready-to-serve meals, mainly consisting of rice; Snack food products made from soya flour; Custard-based fillings for cakes and pies; Bread biscuits.’ –        Class 35: ‘Retail services relating to food’. 4 On 14 June 2019, the intervener, Topas GmbH, filed a notice of opposition to registration of the mark applied for in respect of all the goods and services covered by that mark. 5 The opposition was based on the earlier EU word mark végé’, applied for on 13 January 2017 and registered on 31 August 2020, covering goods in Classes 29 and 30 and corresponding, for each of those classes, to the following description: –        Class 29: ‘Vegetarian and vegan alternatives to meat, meat goods, sausages, charcuterie and ready meals consisting predominantly of meat or sausage; Meat alternatives, namely vegetarian or vegan products resembling meat, in particular sausages and charcuterie, products resembling sausages and meat, and rissoles; Plant-based meat, fish, game and poultry substitutes, and goods made therefrom in fresh, frozen, smoked and semi-prepared form, in particular meat substitutes based on plant proteins; Lupins and Lupin protein; Seitan (meat substitute); Soya and wheat protein (gluten) preparations being meat alternatives; Dairy products and substitutes therefor, in particular cheese alternatives and cheese substitutes not consisting of dairy products, vegan cheese, vegan cheese preparations and vegan cheese additives; Ready meals and semi-prepared meals consisting predominantly of meat substitutes’; –        Class 30: ‘Plant-based ready meals’. 6 The ground relied on in support of the opposition was that set out in [OSCURATO:PERSONA] 8(1)(b) of Regulation (EU) 2017/1001 of the [OSCURATO:PERSONA] and of the Council of 14 June 2017 on the [OSCURATO:PERSONA] trade mark (OJ 2017 L 154, p. 1). 7 On 30 January 2024, the [OSCURATO:PERSONA] upheld the opposition in part in respect of the goods and services referred to in paragraph 3 above. 8 On 26 March 2024, the applicant filed a notice of appeal with EUIPO against the [OSCURATO:PERSONA] decision in so far as that division refused its application for registration of the mark applied for. 9 By decision of 19 November 2024, the [OSCURATO:PERSONA] of Appeal, having identified an inconsistency in the reasoning, annulled the [OSCURATO:PERSONA] decision and remitted the case to it. 10 On 29 November 2024, the [OSCURATO:PERSONA] upheld the opposition in part in respect of the goods and services referred to in paragraph 3 above. 11 On 29 January 2025, the applicant filed a notice of appeal with EUIPO against the [OSCURATO:PERSONA] decision in so far as that division refused its application for registration of the mark applied for. 12 By the contested decision, the [OSCURATO:PERSONA] of Appeal stated that the applicant was seeking annulment of the [OSCURATO:PERSONA] decision only in so far as that division refused its application for registration of the mark applied for. In that regard, it considered, inter alia, that the [OSCURATO:PERSONA] had not erred in finding that there was a likelihood of confusion on the part of the relevant public in respect of all the goods and services referred to in paragraph 3 above. Forms of order sought 13 The applicant claims, in essence, that the [OSCURATO:PERSONA] should: –        annul the contested decision and alter the contested decision to the effect that the opposition is rejected in its entirety; –        authorise the registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above; –        order EUIPO to pay the costs. 14 EUIPO contends that the [OSCURATO:PERSONA] should: –        dismiss the action; –        order the applicant to pay the costs incurred by EUIPO in the event that a hearing is convened. 15 The intervener contends that the [OSCURATO:PERSONA] should dismiss the action. [OSCURATO:PERSONA] jurisdiction to take cognisance of the applicant’s second head of claim 16 By its second head of claim, by which it requests that the [OSCURATO:PERSONA] authorise the registration of the mark applied for, the applicant seeks, in essence, the alteration of the contested decision. 17 In that respect, it must be found that the applicant’s second head of claim, by which it requests that the [OSCURATO:PERSONA] authorise the registration of the mark applied for in respect of all the goods and services covered by that mark, may be understood as requesting that the [OSCURATO:PERSONA] alter the contested decision within the meaning of [OSCURATO:PERSONA] 72(3) of Regulation 2017/1001 by adopting the decision that the [OSCURATO:PERSONA] of Appeal should have taken, in accordance with the provisions of that regulation. The competent bodies of EUIPO do not, however, adopt formal decisions recording the registration of an EU trade mark which could be the subject of an appeal. Consequently, the [OSCURATO:PERSONA] of Appeal does not have power to take cognisance of a claim that it should register an EU trade mark. Nor, in those circumstances, is it for the [OSCURATO:PERSONA] to take cognisance of a claim for alteration requesting that it amend the decision of a [OSCURATO:PERSONA] of Appeal to that effect (see judgment of 6 May 2026, [OSCURATO:PERSONA] v EUIPO – [OSCURATO:PERSONA] (alma FARMACIE) , T‑480/25, not published, EU:T:2026:317, paragraph 14 and the case-law cited). 18 It follows that the applicant’s second head of claim must be rejected on the grounds of lack of jurisdiction. Substance 19 In support of its action, the applicant puts forward, in essence, a single plea in law alleging infringement of [OSCURATO:PERSONA] 8(1)(b) of Regulation 2017/1001. In particular, it disputes the existence of a likelihood of confusion on the part of the relevant public as regards the goods and services in respect of which registration was refused. 20 EUIPO and the intervener dispute the applicant’s arguments. 21 [OSCURATO:PERSONA] 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark. 22 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 – [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) , T‑162/01, EU:T:2003:199, paragraphs 30 to 32 and the case-law cited). 23 In the present case, the applicant does not dispute the [OSCURATO:PERSONA] of Appeal’s findings that, first, the relevant public consists of the general public and professionals in the [OSCURATO:PERSONA], whose level of attention is low to average, and, second, that the goods and services at issue are identical or similar, at least to a low degree. 24 Nor does the applicant dispute the [OSCURATO:PERSONA] of Appeal’s assessment that the earlier mark has a weak distinctive character. The comparison of the signs 25 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 that 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). 26 Assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment of 12 June 2007, OHIM v Shaker , C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment of 12 June 2007, OHIM v Shaker , C‑334/05 P, EU:C:2007:333, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgment of 20 September 2007, Nestlé v OHIM , C‑193/06 P, not published, EU:C:2007:539, paragraph 43). The alleged failure to take into account the signs at issue as a whole and the distinctive and dominant elements of the mark applied for 27 The applicant complains that the [OSCURATO:PERSONA] of Appeal did not compare the signs at issue as a whole, but arbitrarily excluded from the comparison the word ‘go’ and the figurative elements of the mark applied for, in order to compare only the word ‘vege’ in the mark applied for with the earlier mark. 28 In addition, the applicant disputes the [OSCURATO:PERSONA] of Appeal’s assessment that the word ‘vege’ is the dominant element of the mark applied for. 29 [OSCURATO:PERSONA] of Appeal found that the word ‘vege’ in the mark applied for, despite its weak distinctive character in relation to the goods and services at issue, was the element which primarily caught the attention of consumers on account of its position and size. Furthermore, it considered – without it being disputed by the applicant – that the word ‘go’ in the mark applied for could be understood by the English-speaking part of the relevant public as a motivational call or invitation to take up a vegetarian lifestyle in the context of the goods and services at issue. It inferred from this that the word ‘go’ had a weak distinctive character. In addition, as regards the figurative elements of the mark applied for, such as the green circle and the branch featuring leaves, the [OSCURATO:PERSONA] of Appeal found that they are generally perceived as advertising an ecological or environmentally friendly character in the context of the goods and services at issue and therefore had to be regarded as decorative and of secondary importance. 30 In the present case, in the first place, contrary to what the applicant claims, the [OSCURATO:PERSONA] of Appeal took account of the word ‘go’ and the figurative elements of the mark applied for in its visual, phonetic and conceptual comparison of the signs at issue. Thus, it is apparent inter alia from paragraph 90 of the contested decision that the [OSCURATO:PERSONA] of Appeal found that the signs at issue differed visually in the figurative elements of the mark applied for, but that those elements were of secondary importance. Phonetically, it considered, in paragraphs 91 and 93 of the contested decision, that the signs at issue differed in the pronunciation of the word ‘go’, but that that word had a weak distinctive character. As regards the conceptual comparison of the signs at issue, it is apparent from paragraph 95 of the contested decision that the [OSCURATO:PERSONA] of Appeal also took account of the word ‘go’ in its analysis, when it found that English-speaking consumers, as well as consumers who have a basic understanding of English, understand the word ‘go’ in the mark applied for as a motivational call to take up a vegetarian lifestyle. 31 It is true that the [OSCURATO:PERSONA] of Appeal did not refer to the word ‘go’ in its analysis regarding the visual comparison of the signs at issue. However, since the [OSCURATO:PERSONA] of Appeal found, without it being disputed by the applicant, that the word ‘go’ had a weak distinctive character in the mark applied for in respect of the goods and services at issue, that omission cannot, in the light of the case-law referred to in paragraphs 25 and 26 above, constitute an error of law. 32 Accordingly, the line of argument relating to the alleged failure to take into account the signs at issue as a whole must be rejected. 33 In the second place, it must be stated, as EUIPO correctly contends, that the applicant has not put forward any specific argument or evidence capable of substantiating its challenge to the [OSCURATO:PERSONA] of Appeal’s assessment that the word ‘vege’ in the mark applied for is the element which primarily catches the consumer’s attention. 34 In addition, it must be noted that, where a trade mark consists of word and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more readily refer to the goods in question by quoting the name of the mark than by describing the figurative element of that mark (see judgment of 28 September 2022, [OSCURATO:PERSONA] v EUIPO – Sumol + [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) , T‑572/21, not published, EU:T:2022:594, paragraph 31 and the case-law cited). 35 Moreover, the weak distinctive character of an element of a composite mark does not necessarily imply that that element cannot constitute a dominant element since it may, on account, in particular, of its position in the sign or its size, make an impression on consumers and be remembered by them (judgment of 13 June 2006, Inex v OHIM – Wiseman (Representation of a cowhide) , T‑153/03, EU:T:2006:157, paragraph 32). 36 In the present case, in view of its size and central position within the mark applied for, the [OSCURATO:PERSONA] of Appeal was entitled to find that the word ‘vege’, despite its weak distinctive character in relation to the goods and services at issue, constituted the dominant element of the mark applied for. In addition, it must be stated that the figurative elements of the mark applied for are not so large in size, nor are they arranged in such a specific, original or elaborate manner, as to be capable of significantly influencing the overall impression conveyed by the mark applied for. Furthermore, as regards the word ‘go’, it must be held, as the [OSCURATO:PERSONA] of Appeal found, that, in the context of the mark applied for, it has a weak distinctive character given that, for the English-speaking part of the relevant public, it may be understood as an invitation to take up a vegetarian lifestyle. Moreover, that element is smaller than the element ‘vege’ in the mark applied for. 37 It follows from all of the foregoing that the [OSCURATO:PERSONA] of Appeal was correct in concluding that, despite its weak distinctive character, the word element ‘vege’ was the element of the mark applied for which the relevant public would remember before the other elements of that mark. Visual similarity 38 [OSCURATO:PERSONA] of Appeal found that the signs at issue coincided in the element ‘vege’, even though that element contained two accents and an apostrophe in the earlier mark, and even though those signs differed in the figurative elements of the mark applied for. In addition, the [OSCURATO:PERSONA] of Appeal concluded that, overall, the signs at issue had an above-average degree of visual similarity, given that, first, the word ‘vege’ was the dominant element of the mark applied for, was also placed in the centre of the earlier mark and was written in a larger font in the mark applied for, and, second, the figurative elements of the earlier mark were of secondary importance. 39 The applicant submits, in essence, that there are visual differences between the signs at issue. Their different stylisations, arrangements, lengths and colours attract the attention of consumers and are sufficient to distinguish them. Furthermore, it maintains that the visual similarity between the signs at issue is limited solely to the word ‘vege’ and that that word is not exactly the same in those signs since, in the earlier sign, both letters ‘e’ have an acute accent. 40 According to settled case-law, where a figurative mark containing word elements is visually compared with a word mark, the marks are considered to be visually similar if they have in common a significant number of letters in the same position and if the word element of the figurative sign is not highly stylised, notwithstanding the graphic representation of the letters in different type fonts, in italics or bold, in lower case or upper case, or in colour (see judgment of 11 October 2023, Dr. [OSCURATO:PERSONA] v EUIPO – [OSCURATO:PERSONA] (ayuna [OSCURATO:PERSONA]) , T‑490/22, not published, EU:T:2023:616, paragraph 51 and the case-law cited). 41 In the present case, it must be observed that the signs at issue coincide in the word ‘vege’. The accents on the letters ‘e’ and the apostrophe at the end of that word in the earlier mark are not sufficient to offset the similarity found. Moreover, since the figurative elements of the mark applied for will be perceived as decorative, the difference resulting from those elements must be minimised. Lastly, in view of the fact that the word ‘go’ in the mark applied for is written in a smaller font than that of the word ‘vege’ and that it is weakly distinctive – a point which the applicant does not dispute – it is unlikely that it will be perceived by the relevant public. Accordingly, the public’s attention will focus on the word ‘vege’, which dominates the overall impression of the mark applied for. Thus, the presence of the word ‘go’ and of the figurative elements of the mark applied for is not sufficient to offset the similarity created by the overall impression given by the signs at issue. 42 Consequently, the [OSCURATO:PERSONA] of Appeal did not make an error of assessment in considering that the signs at issue had an above-average degree of visual similarity. Phonetic similarity 43 [OSCURATO:PERSONA] of Appeal considered that the signs at issue had a degree of phonetic similarity that was higher than average. In that regard, it found that the part of the relevant public which did not take into account the accents of the earlier mark pronounced that mark and the word ‘vege’ of the mark applied for identically. Furthermore, in its view, for the part of the relevant public that pronounces the accents, the presence of those accents in the earlier mark might very slightly alter their pronunciation as compared with the word ‘vege’ in the mark applied for. In addition, the [OSCURATO:PERSONA] of Appeal considered that, in view of the weak distinctive character of the word ‘go’ in the mark applied for, it was unlikely that it would be pronounced and that, in any event, even though it appeared at the beginning of the mark applied for, that word could not outbalance the phonetic impact of the following two syllables ‘ve’ and ‘ge’. 44 The applicant submits that the degree of phonetic similarity between the signs at issue is not higher than average. In particular, it argues, first, that the mark applied for does not consist exclusively of the word ‘vege’ and, second, that the earlier mark has acute accents on the two letters ‘e’, which have an impact on the pronunciation of that word. 45 In the present case, as regards the applicant’s argument that there is a difference in accentuation, it must be observed that the [OSCURATO:PERSONA] of Appeal took that difference into account. However, as the [OSCURATO:PERSONA] of Appeal found, only a part of the relevant public will notice the accents that are present in the earlier mark. The part of the relevant public whose language does not contain such accents will not ascribe any importance to them and, consequently, for that part of the relevant public, the word ‘vege’ in the mark applied for and the word ‘vege’ in the earlier mark will be pronounced in exactly the same way. 46 Furthermore, the applicant does not dispute that the word ‘go’ has a weak distinctive character. Accordingly, the public’s attention will focus on the word ‘vege’, which dominates the overall impression of the mark applied for. Therefore, the applicant cannot criticise the [OSCURATO:PERSONA] of Appeal for having ascribed less importance to the word ‘go’ in the outcome of the phonetic comparison of the signs at issue. 47 Consequently, it must be held that the [OSCURATO:PERSONA] of Appeal did not make an error of assessment in considering that the signs at issue had a degree of phonetic similarity that was higher than average. Conceptual similarity 48 [OSCURATO:PERSONA] of Appeal considered that the signs at issue were conceptually similar, to at least an average degree, for the English-speaking part of the relevant public. In that regard, the [OSCURATO:PERSONA] of Appeal stated that the word ‘vege’, common to the signs at issue, is understood, at least for a part of the relevant public, as alluding to the vegetarian nature of the goods and services at issue. Furthermore, as regards the mark applied for, the [OSCURATO:PERSONA] of Appeal found that the English-speaking part of the relevant public and the part with a basic understanding of English could, in the context of the goods and services at issue, understand that sign as referring to an invitation to take up a vegetarian lifestyle. 49 The applicant criticises the [OSCURATO:PERSONA] of Appeal for having found that the signs at issue could have similar connotations, arguing that the earlier mark will be understood as an abbreviation of the words ‘vegetal’ or ‘vegetarian’, whereas the mark applied for, through the presence of the word ‘go’, refers to a suggestion to follow a vegetarian lifestyle. 50 It must be observed that it is common ground between the parties that the earlier mark alludes to the vegetarian nature of the goods concerned and that the mark applied for will be understood as suggesting the adoption of a vegetarian lifestyle, at least for the English-speaking part of the relevant public, on account of the presence of the word ‘go’. However, it must be pointed out that, despite the presence of the element ‘go’, the signs at issue convey a very similar concept in relation to the vegetarian nature of the goods and services at issue. Moreover, it must also be borne in mind that the word ‘go’ is secondary in the mark applied for, in view of its weak distinctive character. Contrary to what the applicant claims, the additional element ‘go’ in the mark applied for cannot cause the conceptual similarity of the signs at issue to be overlooked. 51 Accordingly, the [OSCURATO:PERSONA] of Appeal did not make an error of assessment in considering that the signs at issue were conceptually similar, to at least an average degree, for the English-speaking part of the relevant public. The likelihood of confusion 52 According to settled case-law of the [OSCURATO:PERSONA] of Justice, the existence of a likelihood of confusion depends on numerous elements, in particular the recognition of the trade mark on the market, the association which can be made with the used or registered sign, and the degree of similarity between the trade mark and the sign and between the goods or services identified. The likelihood of confusion must therefore be assessed globally, taking into account all the relevant factors of the particular case (see judgment of 12 June 2019, Hansson , C‑705/17, EU:C:2019:481, paragraph 41 and the case-law cited). 53 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, Mast-Jägermeister v OHIM – [OSCURATO:PERSONA] (VENADO with frame and others) , T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74). 54 The applicant submits that there is no likelihood of confusion given that the signs at issue are visually, phonetically and conceptually different. In that regard, it maintains, in essence, that the degree of phonetic similarity between two marks is of less importance in the case of goods which are marketed in such a way that, when making a purchase, the relevant public usually perceives the mark designating them visually. According to the applicant, the visual differences between the signs at issue are of particular importance. In addition, it argues that the [OSCURATO:PERSONA] of Appeal did not take into account all the elements of which the mark applied for consists and merely compared the word element ‘vege’ in the mark applied for with the earlier mark in order to assess the likelihood of confusion. 55 First, it must be recalled that the relevant public consists of the general public and professionals in the [OSCURATO:PERSONA], whose level of attention is low to average, and, moreover, that the goods and services covered by the mark applied for are in part identical and in part similar – at least to a low degree – to the goods covered by the earlier mark. 56 Second, it follows from paragraphs 42, 47 and 51 above that the signs at issue have an above-average degree of visual and phonetic similarity and a degree of conceptual similarity which is at least average for the English-speaking part of the relevant public. [OSCURATO:PERSONA] of Appeal was therefore entitled to find that, overall, there existed a likelihood of confusion on the part of the relevant public in respect of the goods and services at issue. 57 Third, as regards the applicant’s argument that the [OSCURATO:PERSONA] of Appeal did not take into account all the elements of which the contested mark consists in order to assess the likelihood of confusion, it must be recalled, as has been stated in paragraphs 30 to 32 above, that that argument stems from a misreading of the contested decision on the part of the applicant. Indeed, when assessing the visual, phonetic and conceptual similarity of the signs at issue, the [OSCURATO:PERSONA] of Appeal included in its comparison all the elements of which the mark applied for consists. 58 Fourth, as regards the applicant’s argument that the degree of phonetic similarity between two marks is of less importance in the case of goods which are marketed in such a way that, when making a purchase, the relevant public usually perceives the mark designating them visually, it must be observed that the [OSCURATO:PERSONA] of Appeal took that into account when it found, in paragraph 104 of the contested decision, that food products in Classes 29 and 30 were often purchased in self-service shops where the consumer selected the product himself or herself and, therefore, had to rely primarily on the image of the trade mark affixed to that product, with the result that the visual similarity between the signs was, as a general rule, of greater importance. However, the [OSCURATO:PERSONA] of Appeal found, in that respect, that, in view of the fact that the dominant element of the mark applied for was highly similar to the earlier mark, the signs at issue had an above-average degree of visual similarity. 59 In the light of the foregoing, the single plea in law put forward in support of the applicant’s claim for annulment and alteration of the contested decision must be rejected as unfounded and, accordingly, the action must be dismissed in its entirety. Costs 60 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure of the [OSCURATO:PERSONA], the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 61 Although the applicant has been unsuccessful, EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened. Since no hearing has been organised, it is appropriate to order the applicant and EUIPO to bear their own costs. Since the intervener has not applied for the applicant to be ordered to pay the costs, it must therefore bear its own costs. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the action; 2. Orders each party to bear its own costs. [OSCURATO:PERSONA] in open court in Luxembourg on 15 July 2026. V. [OSCURATO:PERSONA] M. [OSCURATO:PERSONA] * Language of the case: English.
Sentenza Corte di giustizia UE n. 2017/2026 — Fons Iuris — Fons Iuris