Corte di giustizia UE n. 2017/2026

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 9 September 2026 ( * ) ( EU trade mark – [OSCURATO:PERSONA] proceedings – Application for the EU figurative mark [OSCURATO:PERSONA] – Earlier EU word mark SVR – Relative ground for refusal – Likelihood of confusion – [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] (EU) 2017/1001 – Scope of the examination to be carried out by the [OSCURATO:PERSONA] of Appeal – Right to be heard – [OSCURATO:PERSONA] 94(1) of [OSCURATO:PERSONA] 2017/1001 – Examination of the facts of [OSCURATO:PERSONA]’s own motion – Evidence submitted for the first time before the [OSCURATO:PERSONA] of Appeal – [OSCURATO:PERSONA] 95(1) and (2) of [OSCURATO:PERSONA] 2017/1001 – [OSCURATO:PERSONA] 27(2) and (4) of [OSCURATO:PERSONA] (EU) 2018/625 ) [OSCURATO:PERSONA] T‑244/24, [OSCURATO:SOCIETA]., established in Bogotá (Colombia), represented by C. [OSCURATO:PERSONA] and S. Sáenz de [OSCURATO:PERSONA], lawyers, applicant, v [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), represented by T. Klee, acting as Agent, defendant, the other party to the proceedings before the [OSCURATO:PERSONA] of Appeal of [OSCURATO:PERSONA] being [OSCURATO:PERSONA], established in [OSCURATO:PERSONA]Pâté (France), [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of P. Škvařilová-[OSCURATO:PERSONA], [OSCURATO:PERSONA], I. [OSCURATO:PERSONA] (Rapporteur) and R. [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, [OSCURATO:SOCIETA]., seeks the annulment of the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) of 11 March 2024 ([OSCURATO:PERSONA] R 135/2023-5) (‘the contested decision’). I. Background to the dispute 2 On 11 December 2018, the applicant filed an application for registration of an EU trade mark with [OSCURATO:PERSONA] in respect of the following figurative sign: 3 The mark applied for covered goods in Class 3 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 to the following description: ‘Perfume; Fragrances; Perfume water; Household fragrances; Air fragrancing preparations; Air fragrance reed diffusers; Sachets for perfuming linen; Sachets for perfuming linen; Scented linen water; Cosmetic bath and shower products; Soaps; Bar soap; Vegetable soaps; Soaps in liquid form; Oily liquid soaps; Creamy liquid soaps; Deodorant soap; Bath salts; Bubble bath; Shampoo; Hair and skin conditioners; Hair preparations and treatments; Essential oils; Cosmetic masks; Shaving preparations; After-shave preparations; lip balms and glosses; Exfoliants; Skincare cosmetics; Body cream; Face creams for cosmetic use; Non-medicated eye contour creams; Hair serums; Serums for cosmetic purposes; Tonics [cosmetic]; Herbal extracts for cosmetic purposes’. 4 On 1 April 2019, the other party to the proceedings before the [OSCURATO:PERSONA] of Appeal of [OSCURATO:PERSONA], [OSCURATO:PERSONA] (‘the opponent’), filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above. 5 The opposition was based on the earlier EU word mark SVR, filed on 10 May 2012 and registered on 8 October 2012 under No 10 871 631, covering the goods in Class 3 and corresponding to the following description: ‘Cosmetics, shampoos, hair lotions; Anti-perspirants for personal use; Soap’. 6 The ground relied on in support of the opposition was that set out in [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] (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 In the course of those opposition proceedings, on 13 September 2021 the applicant requested that the opponent adduce proof of genuine use of the earlier mark, in accordance with [OSCURATO:PERSONA] 47(2) of [OSCURATO:PERSONA] 2017/1001. 8 On 18 January 2022, the opponent adduced several pieces of evidence, consisting, in essence, of a series of screenshots of its website showing various ranges of goods it offered and a series of invoices for sales of its goods to subsidiaries located in Bulgaria, Ireland, Spain and Italy, in order to establish genuine use of the earlier mark in respect of the goods referred to in the opposition proceedings. 9 By decision of 22 November 2022, the [OSCURATO:PERSONA] upheld the opposition in part and rejected the application for registration of the mark in respect of the following goods in Class 3: ‘Perfume; Fragrances; Perfume water; Cosmetic bath and shower products; Soaps; Bar soap; Vegetable soaps; Soaps in liquid form; Oily liquid soaps; Creamy liquid soaps; Deodorant soap; Bath salts; Bubble bath; Shampoo; Hair and skin conditioners; Hair preparations and treatments; Essential oils; Cosmetic masks; Shaving preparations; After-shave preparations; lip balms and glosses; Exfoliants; Skincare cosmetics; Body cream; Face creams for cosmetic use; Non-medicated eye contour creams; Hair serums; Serums for cosmetic purposes; Tonics [cosmetic]; Herbal extracts for cosmetic purposes’. 10 The opposition was rejected for the remainder, that is to say, for the following goods in Class 3 covered by the mark applied for: ‘Household fragrances; Air fragrancing preparations; Air fragrance reed diffusers; Sachets for perfuming linen; Sachets for perfuming linen; Scented linen water’. 11 On 18 January 2023, the applicant filed a notice of appeal with [OSCURATO:PERSONA] against the [OSCURATO:PERSONA] decision, in so far as it had upheld the opposition in part. 12 On 30 June 2023, the applicant filed a reply with the [OSCURATO:PERSONA] of Appeal. No rejoinder was filed by the opponent. 13 By the contested decision, the [OSCURATO:PERSONA] of Appeal dismissed the appeal and held, in essence, that there was a likelihood of confusion within the meaning of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 2017/1001. In that regard, it held that the goods in question were identical or similar, that the signs at issue were visually and phonetically similar to an average degree and that a conceptual comparison was impossible on account of those signs not conveying a specific concept to the relevant [OSCURATO:PERSONA]-speaking public. II. Forms of order sought 14 The applicant claims, in essence, that the [OSCURATO:PERSONA] should: –        annul the contested decision; –        in the alternative, alter the contested decision and dismiss the opposition in its entirety; –        order [OSCURATO:PERSONA] to bear its own costs and to pay those incurred by the applicant in the present proceedings, the proceedings before the [OSCURATO:PERSONA] of Appeal and the proceedings before the [OSCURATO:PERSONA]. 15 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the action; –        order the applicant to pay the costs in the event that a hearing is convened. III. Law 16 In support of its action, the applicant relies, in essence, on a plea in law alleging, first, infringement of [OSCURATO:PERSONA] 95 of [OSCURATO:PERSONA] 2017/1001, read in conjunction with [OSCURATO:PERSONA] 27(2) and (4) of [OSCURATO:PERSONA] (EU) 2018/625 of 5 March 2018 supplementing [OSCURATO:PERSONA] 2017/1001, and repealing [OSCURATO:PERSONA] (EU) 2017/1430 (OJ 2018 L 104, p. 1), secondly, breach of its rights of defence, and in particular [OSCURATO:PERSONA] 94(1) of [OSCURATO:PERSONA] 2017/1001 and, thirdly, infringement of [OSCURATO:PERSONA] 41(2) of the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] (‘the Charter’). In the alternative, the applicant puts forward a second plea in law, alleging infringement of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 2017/1001. A. The first plea in law, alleging infringement of [OSCURATO:PERSONA] 95 of [OSCURATO:PERSONA] 2017/1001, read in conjunction with [OSCURATO:PERSONA] 27(2) and (4) of [OSCURATO:PERSONA] 2018/625, and of [OSCURATO:PERSONA] 94(1) of [OSCURATO:PERSONA] 2017/1001, read in conjunction with [OSCURATO:PERSONA] 41(2) of the Charter 17 The applicant’s first plea in law may be divided, in essence, into three complaints. It claims, in the first place, that the [OSCURATO:PERSONA] of Appeal erred in law by examining whether there was a likelihood of confusion for part of the relevant public other than the Spanish-speaking public, which was the only part of that public taken into account by the [OSCURATO:PERSONA], thus infringing [OSCURATO:PERSONA] 95 of [OSCURATO:PERSONA] 2017/1001, read in conjunction with [OSCURATO:PERSONA] 27(2) of [OSCURATO:PERSONA] 2018/625. 18 In the second place, the applicant criticises the [OSCURATO:PERSONA] of Appeal for taking into account evidence submitted for the first time before it relating to the perception of the signs at issue by the non-Spanish-speaking public, thus infringing [OSCURATO:PERSONA] 95 of [OSCURATO:PERSONA] 2017/1001, read in conjunction with [OSCURATO:PERSONA] 27(4) of [OSCURATO:PERSONA] 2018/625. 19 In the third place, the applicant claims that the [OSCURATO:PERSONA] of Appeal erred in law by basing its examination on the evidence referred to in paragraph 18 above and thus acting in breach of the applicant’s right to be heard, for the purposes of [OSCURATO:PERSONA] 94(1) of [OSCURATO:PERSONA] 2017/1001, read in conjunction with [OSCURATO:PERSONA] 41(2) of the Charter. 20 First, the applicant submits that, in order to have the perception of the signs at issue by the [OSCURATO:PERSONA]-speaking part of the relevant public taken into account, the opponent should have filed a cross appeal, under [OSCURATO:PERSONA] 68(2) of [OSCURATO:PERSONA] 2017/1001, against the decision of the [OSCURATO:PERSONA]. In that respect, according to the applicant, the opponent attempted, by its response to the appeal (‘the response to the appeal’), unlawfully to alter points not challenged in the appeal, in particular the [OSCURATO:PERSONA] findings that the mark applied for would be perceived as being composed only of Spanish words, and that the last element of that mark, namely the element ‘svr’, would be perceived as the Spanish word meaning ‘south’. In its view, the conditions of [OSCURATO:PERSONA] 27(2) of [OSCURATO:PERSONA] 2018/625 have not been met since the arguments put forward by the opponent are matters of fact and not law, and do not concern the essential procedural requirements for the correct application of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 2017/1001. 21 Secondly, the applicant claims that the arguments and evidence submitted by the opponent before the [OSCURATO:PERSONA] of Appeal and relating to the perception of the signs at issue by the [OSCURATO:PERSONA]-speaking public were not submitted in the form required and within the prescribed time limits. According to the applicant, that evidence could not be taken into account by the [OSCURATO:PERSONA] of Appeal because it was not adduced in accordance with the requirements of [OSCURATO:PERSONA] 27(4) of [OSCURATO:PERSONA] 2018/625. 22 Thirdly, the applicant criticises the [OSCURATO:PERSONA] of Appeal for acting in breach of its right to be heard, provided for in [OSCURATO:PERSONA] 41(2) of the Charter. The applicant criticises it in particular for examining and deciding on the action on the basis of arguments and evidence submitted by the opponent for the first time in its response to the appeal, without first giving the applicant the opportunity to respond to them, thus infringing [OSCURATO:PERSONA] 94(1) of [OSCURATO:PERSONA] 2017/1001. 23 Thus, in the applicant’s view, by stating, in paragraph 90 of the contested decision, that a prior hearing was not necessary, the [OSCURATO:PERSONA] of Appeal acknowledged that the applicant had not been given the opportunity to submit its observations. The applicant therefore argues that, had the [OSCURATO:PERSONA] of Appeal confined itself to the facts, observations and evidence initially submitted in accordance with the rules and time limits prescribed, its examination would necessarily have been limited to the relevant Spanish-speaking public, and the outcome of that examination would have been different. 24 Accordingly, since it was not able to present its observations on the arguments and new evidence submitted before the [OSCURATO:PERSONA] of Appeal, the applicant submitted additional evidence, contained in Annexes A.5 and A.6 to the application. Those annexes consist of two market surveys relating to the pronunciation by the [OSCURATO:PERSONA]-speaking part of the relevant public of the element ‘svr’ of the earlier mark and of the word combination ‘loto dl svr’ of the mark applied for, since the perception of that part of the public had not, according to the applicant, been examined by the [OSCURATO:PERSONA] and was, in essence, raised for the first time by the [OSCURATO:PERSONA] of Appeal. 25 [OSCURATO:PERSONA] disputes the applicant’s arguments. 26 In the first place, concerning the admissibility, before the [OSCURATO:PERSONA] of Appeal, of the opponent’s arguments relating to the perception of the [OSCURATO:PERSONA]-speaking part of the relevant public, it must be borne in mind that there is functional continuity between the different adjudicating bodies of [OSCURATO:PERSONA], on the one hand, and the Boards of Appeal on the other. It follows from that functional continuity that, in the review of decisions taken by the departments of [OSCURATO:PERSONA] hearing the application that the Boards of Appeal must undertake, the Boards of Appeal are required to base their decision on all the matters of fact and of law which the parties concerned introduced either in the proceedings before the department which heard the application at first instance or in the appeal. The review undertaken by the Boards of Appeal is not limited to the lawfulness of the contested decision, but, by virtue of the devolutive effect of the appeal proceedings, it requires a reappraisal of the dispute as a whole, since the Boards of Appeal must re-examine in full the initial application and take into account evidence produced in due time. It thus follows from [OSCURATO:PERSONA] 71(1) of [OSCURATO:PERSONA] 2017/1001 that, through the effect of the appeal brought before it, the [OSCURATO:PERSONA] of Appeal is called upon to carry out a new, full examination of the merits of the opposition, in terms of both law and fact (see judgment of 7 December 2017, Coca-Cola v [OSCURATO:PERSONA] – Mitico ([OSCURATO:PERSONA]) , T‑61/16, EU:T:2017:877, paragraph 115 and the case-law cited). 27 [OSCURATO:PERSONA], under [OSCURATO:PERSONA] 95(1) of [OSCURATO:PERSONA] 2017/1001, in proceedings relating to relative grounds for refusal of registration, [OSCURATO:PERSONA] is restricted in its examination to the facts, evidence and arguments provided by the parties and the relief sought, with the result that the [OSCURATO:PERSONA] of Appeal may base its decision only on the relative grounds for refusal relied on by the party concerned and the related facts and evidence presented by the parties. 28 The fact remains that the [OSCURATO:PERSONA] of Appeal is required to decide on all issues which, in the light of the facts, evidence and arguments provided by the parties and the relief sought, are necessary to ensure a correct application of that regulation and in respect of which it has all the information required in order to be able to take a decision, even if no matter of law relating to those issues has been relied on by the parties before it (judgment of 18 June 2020, Primart v [OSCURATO:PERSONA] , C‑702/18 P, EU:C:2020:489, paragraph 41; see, also, judgment of 19 October 2022, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] – [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) , T‑437/21, not published, EU:T:2022:643, paragraph 22 and the case-law cited). 29 In addition, the [OSCURATO:PERSONA] of Appeal is entitled, where appropriate, to supplement the factual evidence relied on by the parties in the context of its examination of whether there is a likelihood of confusion. The restriction of the factual basis of the examination by the [OSCURATO:PERSONA] of Appeal laid down in [OSCURATO:PERSONA] 27(2) of [OSCURATO:PERSONA] 2018/625 does not preclude it from taking into consideration, in addition to the facts expressly put forward by the parties to the opposition proceedings, facts which are well known, that is, which are likely to be known by anyone or which may be learnt from generally accessible sources (judgment of 22 June 2004, Ruiz-Picasso and Others v OHIM – DaimlerChrysler (PICARO) , T‑185/02, EU:T:2004:189, paragraph 29). 30 [OSCURATO:PERSONA] 27(2) of [OSCURATO:PERSONA] 2018/625 provides the following: ‘In inter partes proceedings, the examination of the appeal and, as the case may be, the cross appeal, shall be restricted to the grounds invoked in the statement of grounds and, as the case may be, in the cross appeal. Matters of law not raised by the parties shall be examined by the [OSCURATO:PERSONA] of Appeal only where they concern essential procedural requirements or where it is necessary to resolve them in order to ensure a correct application of [[OSCURATO:PERSONA] 2017/1001] having regard to the facts, evidence and arguments presented by the parties.’ 31 Accordingly, in the context of opposition proceedings based on [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 2017/1001, the assessments of the similarity of the goods or services in question and of the signs at issue constitute matters of law which are necessary to ensure the correct application of that regulation, with the result that the adjudicating bodies of [OSCURATO:PERSONA] are required to examine those matters, if necessary of their own motion. As that assessment does not presuppose any matter of fact which is for the parties to establish and does not require the parties to provide facts, arguments or evidence tending to establish the existence of those similarities, [OSCURATO:PERSONA] alone is able to detect and assess the existence thereof having regard to the earlier mark on which the opposition is based (see, to that effect, judgment of 18 June 2020, Primart v [OSCURATO:PERSONA] , C‑702/18 P, EU:C:2020:489, paragraph 43). 32 In that regard, where the earlier mark relied on in support of opposition proceedings is an EU trade mark, it is not a requirement of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 2017/1001 that, for the mark applied for to be refused registration, the likelihood of confusion must exist in all the [OSCURATO:PERSONA] and in all the language areas of the [OSCURATO:PERSONA]. The unitary character of the EU trade mark means that such an earlier trade mark can be relied on against any application for registration of a later trade mark which would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the [OSCURATO:PERSONA] (judgment of 18 September 2008, Armacell v OHIM , C‑514/06 P, not published, EU:C:2008:511, paragraphs 56 and 57; see, also, judgment of 21 February 2024, [OSCURATO:PERSONA] NetEase [OSCURATO:PERSONA] v [OSCURATO:PERSONA] – Medion (LifeAfter) , T‑175/23, not published, EU:T:2024:109, paragraph 55 and the case-law cited). 33 In the present case, first, the [OSCURATO:PERSONA] of Appeal was correct in finding, in paragraph 27 of the contested decision, that the [OSCURATO:PERSONA] had chosen to focus its assessment on the Spanish-speaking part of the relevant public, on account of the unitary character of the EU trade mark, within the meaning of the case-law cited in paragraph 32 above. [OSCURATO:PERSONA] of Appeal therefore considered, correctly, that no binding legal effect resulted from the decision of the [OSCURATO:PERSONA] concerning the perception of the signs by other parts of the relevant public, that is to say, consumers who speak other languages of the [OSCURATO:PERSONA], since the [OSCURATO:PERSONA] did not carry out any assessment regarding them. 34 Secondly, it must be recalled, in the light of the case-law cited in paragraphs 29 and 31 above, that the applicant filed a notice of appeal with [OSCURATO:PERSONA] and brought an action before the [OSCURATO:PERSONA] on the basis of an alleged infringement of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 2017/1001. In the context of both that appeal and that action, the applicant submits that the signs at issue are insufficiently similar, not only for the Spanish-speaking part of the relevant public, but also for the non-Spanish-speaking part of that public, as is apparent, in particular, from paragraph 103 of its statement of grounds before the [OSCURATO:PERSONA] of Appeal. 35 Consequently, and as [OSCURATO:PERSONA] submits, the applicant explicitly relied on an incorrect application of a legal requirement, namely the requirement that the similarity of the signs at issue be examined, as laid down in [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 2017/1001, for the purposes of the case-law cited in paragraph 31 above. Therefore, the plea in law alleging infringement of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 2017/1001, and the arguments put forward in support of it, concern the examination which the [OSCURATO:PERSONA] of Appeal was required to carry out in accordance with [OSCURATO:PERSONA] 27(2) of [OSCURATO:PERSONA] 2018/625. In addition, in the light of the case-law cited in paragraph 29 above, that examination cannot be based solely on or limited solely to the perception of the Spanish-speaking part of the relevant public since it cannot be ruled out that there may also be a likelihood of confusion for another part of the relevant public. 36 It follows that, thirdly, the opponent was entirely correct, in its response to the appeal, not only to respond, in an express and supported manner, on pages 14 to 20 of that response, to the applicant’s arguments and the findings of the [OSCURATO:PERSONA], relating to the comparison of the signs at issue as regards the Spanish-speaking part of the relevant public, but also to submit arguments relating to the perception of those signs by other parts of the relevant public, such as the English-speaking or [OSCURATO:PERSONA]-speaking public, without those arguments being understood as new facts, evidence or arguments which could be submitted only by means of a cross appeal. 37 In that regard, fourthly, it follows, in essence, from [OSCURATO:PERSONA] 68(2) of [OSCURATO:PERSONA] 2017/1001 that a cross appeal seeks a decision annulling or altering the decision of the [OSCURATO:PERSONA] of Appeal on a point not raised in the appeal. 38 That is not the situation in the present case since the opponent did not seek, by its arguments or claims, a decision annulling or altering the decision of the [OSCURATO:PERSONA] on a point not raised in the appeal, but submitted its arguments relating to the [OSCURATO:PERSONA]-speaking public for the sake of the completeness and exhaustiveness of its arguments before the [OSCURATO:PERSONA] of Appeal. It follows that, contrary to what the applicant argues, the opponent was reasonably able to rely on arguments concerning parts of the relevant public other than the Spanish-speaking public without needing to bring a cross appeal before the [OSCURATO:PERSONA] of Appeal. 39 In addition, fifthly, as [OSCURATO:PERSONA] correctly submitted, it is apparent from the latter’s case file that the applicant had itself already raised, before the [OSCURATO:PERSONA], on page 4 of the observations of 5 April 2022, the question of the perception, by the non-Spanish-speaking parts of the relevant public, of the elements that make up the mark applied for. 40 Accordingly, the [OSCURATO:PERSONA] of Appeal did not make an error of assessment or err in law by examining the perception of the signs at issue by a non-Spanish-speaking part of the relevant public in the territory of the [OSCURATO:PERSONA]. 41 In the second place, as regards the [OSCURATO:PERSONA] of Appeal taking into account the new arguments and evidence, it follows from [OSCURATO:PERSONA] 95(2) of [OSCURATO:PERSONA] 2017/1001 that [OSCURATO:PERSONA] ‘may disregard facts or evidence which are not submitted in due time by the parties concerned’. 42 It follows from the wording of that article that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of the time limits to which such submission is subject under the provisions of [OSCURATO:PERSONA] 2017/1001, and that [OSCURATO:PERSONA] is in no way prohibited from taking account of facts and evidence which are submitted or produced late (judgments of 13 March 2007, OHIM v Kaul , C‑29/05 P, EU:C:2007:162, paragraph 42; of 19 April 2018, [OSCURATO:PERSONA] v Group , C‑478/16 P, not published, EU:C:2018:268, paragraph 34; and of 2 June 2021, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] – RDS Design (MONTANA) , T‑854/19, EU:T:2021:309, paragraph 24). 43 In stating that [OSCURATO:PERSONA] ‘may’, in such a case, decide to disregard such evidence, [OSCURATO:PERSONA] 95(2) of [OSCURATO:PERSONA] 2017/1001 grants [OSCURATO:PERSONA] a broad discretion to decide, while giving reasons for its decision in that regard, whether or not to take it into account (see, to that effect, judgments of 13 March 2007, OHIM v Kaul , C‑29/05 P, EU:C:2007:162, paragraph 43; of 24 January 2018, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑634/16 P, EU:C:2018:30, paragraph 56; and of 2 June 2021, MONTANA , T‑854/19, EU:T:2021:309, paragraph 25). 44 [OSCURATO:PERSONA], [OSCURATO:PERSONA] 27(4) of [OSCURATO:PERSONA] 2018/625 circumscribes the exercise of the discretion provided for in [OSCURATO:PERSONA] 95(2) of [OSCURATO:PERSONA] 2017/1001 as regards facts and evidence submitted for the first time before the [OSCURATO:PERSONA] of Appeal. That provision provides the following: ‘In accordance with [OSCURATO:PERSONA] 95(2) of [[OSCURATO:PERSONA] 2017/1001], the [OSCURATO:PERSONA] of Appeal may accept facts or evidence submitted for the first time before it only where those facts or evidence meet the following requirements: (a)      they are, on the face of it, likely to be relevant for the outcome of the case; and (b)      they have not been produced in due time for valid reasons, in particular where they are merely supplementing relevant facts and evidence which had already been submitted in due time, or are filed to contest findings made or examined by the first instance of its own motion in the decision subject to appeal.’ 45 In the present case, it must be found that the [OSCURATO:PERSONA] of Appeal examined, in paragraphs 30 to 35 of the contested decision, the admissibility of the evidence submitted for the first time before it and came to the reasoned conclusion that the conditions of [OSCURATO:PERSONA] 27(4) of [OSCURATO:PERSONA] 2018/625 had been met since that evidence was relevant for the purpose of challenging the findings made by the [OSCURATO:PERSONA] concerning the perception of the signs compared under [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 2017/1001 and appeared, on the face of it, to be relevant for the outcome of the case. 46 In that regard, as is apparent from paragraphs 33 to 36 above, the additional evidence submitted by the opponent was added to the evidence already submitted before the [OSCURATO:PERSONA], and was intended to respond to the findings of the latter as regards the perception of the signs at issue by the relevant EU public. Since the examination of the appeal did not have to be limited only to the Spanish-speaking part of the relevant public, the opponent was entitled to submit that new evidence in support of its arguments concerning another part of the relevant public. Therefore, not only did that evidence prove to be relevant for the outcome of the case, but it was capable, for the purposes of [OSCURATO:PERSONA] 27(4)(b) of [OSCURATO:PERSONA] 2018/625, of validly supplementing the evidence which had already been submitted before the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] of Appeal was therefore correct in finding that the requirements laid down by that provision had been met. 47 In the light of the foregoing, the [OSCURATO:PERSONA] of Appeal did not make any error of assessment or err in law by examining the admissibility of the evidence submitted for the first time before it. None of the applicant’s arguments is capable of calling that finding into question. 48 In the third place, as regards the applicant’s arguments relating to the breach of its rights of defence, it must be recalled that, under the second sentence of [OSCURATO:PERSONA] 94(1) of [OSCURATO:PERSONA] 2017/1001, the decisions of [OSCURATO:PERSONA] are to be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments. 49 That provision constitutes a specific application of the general principle of respect for the rights of the defence, enshrined, moreover, in [OSCURATO:PERSONA] 41(2)(a) of the Charter, according to which a person whose interests are affected by a decision of a public authority must be given the opportunity effectively to make his or her point of view known. The right to be heard extends to all the factual and legal material which forms the basis of the decision-making act (see, to that effect, judgments of 16 July 2015, Roland v OHIM – Louboutin (Nuance of red on the sole of a shoe) , T‑631/14, not published, EU:T:2015:521, paragraph 20, and of 29 March 2019, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] – [OSCURATO:PERSONA] (Shape of a shoe sole) , T‑611/17, not published, EU:T:2019:210, paragraph 72). 50 In the present case, as [OSCURATO:PERSONA] correctly submitted, and as is apparent from paragraphs 31 to 36 above, the scope of the appeal that the applicant brought before the [OSCURATO:PERSONA] of Appeal was not limited only to the perception of the Spanish-speaking part of the relevant public. [OSCURATO:PERSONA], as is apparent from, more specifically, paragraph 36 above and the evidence in the case file to which it refers, both parties had ample opportunity to submit their observations as to whether there was a likelihood of confusion in the relevant territory, namely the [OSCURATO:PERSONA], including [OSCURATO:PERSONA] like Italy. In addition, as follows from paragraph 90 of the contested decision, it was apparent to the parties from the start of the proceedings before the [OSCURATO:PERSONA] that the opposition would be upheld if there was a likelihood of confusion anywhere in the [OSCURATO:PERSONA], since the earlier mark is an EU trade mark. 51 [OSCURATO:PERSONA], it should be borne in mind, as is apparent from paragraph 12 above, that the applicant itself sought permission to submit a reply following the opponent’s response to the appeal, which addressed, in a more extensive way, the issue of the perception of the [OSCURATO:PERSONA]-speaking part of the relevant public, alongside a complete and reasoned response to the findings relating to the relevant Spanish-speaking public. In addition, it is apparent from paragraph 3(c) of the applicant’s reply before the [OSCURATO:PERSONA] of Appeal that the applicant explicitly took notice of the arguments put forward by the opponent in its response to the appeal, and that it deliberately decided not to respond to them in a complete and reasoned manner, since, in its view, those arguments should have been submitted in a cross appeal. 52 Accordingly, in those circumstances, the applicant incorrectly interprets the findings in paragraph 90 of the contested decision, according to which there was no need for a prior hearing of the parties regarding the examination of the appeal in the light of the perception of the non-Spanish-speaking part of the relevant public. Since the [OSCURATO:PERSONA] of Appeal had granted the applicant the right to express its views on those matters, in accordance with the latter’s requests, in the context of a second round of written pleadings, it found that it was not necessary to convene another hearing of the parties for them to comment on those points which should, in principle, have already been discussed and, furthermore, that it was possible for there to be a likelihood of confusion in the relevant territory as a whole, even where there was no likelihood of confusion for the Spanish-speaking part of the relevant public. 53 In the fourth place, as regards the new evidence, namely Annexes A.5 and A.6 to the application, it must be observed that [OSCURATO:PERSONA] pleads their inadmissibility and argues, in essence, that the arguments put forward by the applicant in order to justify the late submission of that evidence are erroneous and lack any foundation in law. 54 In that regard, it must be borne in mind that the purpose of an action before the [OSCURATO:PERSONA] is to review the legality of decisions of the Boards of Appeal of [OSCURATO:PERSONA] within the meaning of [OSCURATO:PERSONA] 72 of [OSCURATO:PERSONA] 2017/1001, so that the function of the [OSCURATO:PERSONA] is not to re-examine the factual circumstances in the light of documents submitted to it for the first time (see judgment of 7 February 2024, Darila v [OSCURATO:PERSONA] – [OSCURATO:PERSONA] (Buffet) , T‑101/23, not published, EU:T:2024:65, paragraph 18 and the case-law cited). 55 In the present case, as stated in paragraph 24 above, Annexes A.5 and A.6 to the application include two market surveys relating to the pronunciation by consumers of cosmetics in the relevant [OSCURATO:PERSONA]-speaking public of the element ‘svr’ of the earlier mark and of the word combination ‘loto dl svr’ of the mark applied for. Given that they date from April 2024, those annexes post-date the contested decision and, accordingly, are not included in the [OSCURATO:PERSONA] case file. 56 In addition, as is apparent from paragraph 24 above, the applicant claims to have submitted those annexes for the purpose of challenging findings which, in its view, were raised for the first time before the [OSCURATO:PERSONA] of Appeal concerning the perception of the mark applied for by the relevant [OSCURATO:PERSONA]-speaking public. However, in that regard, it must be observed, first, that, as is apparent from paragraphs 33 to 40 above, the perception of the relevant [OSCURATO:PERSONA]-speaking public was part of the subject matter before the [OSCURATO:PERSONA] and before the [OSCURATO:PERSONA] of Appeal. Secondly, the applicant had taken cognisance of the arguments at issue which were submitted by the opponent in the course of the proceedings before the [OSCURATO:PERSONA] of Appeal and could, from the stage of the appeal before the [OSCURATO:PERSONA] of Appeal onwards, have submitted those annexes concerning the relevant [OSCURATO:PERSONA]-speaking public. That is all the more so since, as is apparent from paragraph 15 of the contested decision, in support of that appeal, the applicant had submitted a study from the same Spanish consultancy firm which exclusively concerned consumers of Spanish cosmetics. Thirdly, since the opponent had submitted arguments relating to the perception of the signs at issue by the [OSCURATO:PERSONA]-speaking part of the relevant public before the [OSCURATO:PERSONA] of Appeal in its response to the appeal, the applicant could have submitted those studies, at the latest, in annex to its reply before the [OSCURATO:PERSONA] of Appeal, which it deliberately did not do (see paragraphs 51 and 52 above). 57 Accordingly, Annexes A.5 and A.6 to the application must be excluded without it being necessary to assess their evidential value. 58 In those circumstances, in the light of all of the foregoing, the applicant’s arguments have no basis in law, with the result that they must be rejected and, consequently, the first plea in law must be rejected in its entirety. B. The second plea in law, put forward in the alternative, alleging infringement of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 2017/1001 59 By its second plea in law, put forward in the alternative, the applicant criticises the [OSCURATO:PERSONA] of Appeal for having made, in essence, several errors of assessment in its examination of whether there whether there is a likelihood of confusion for the [OSCURATO:PERSONA]-speaking part of the relevant public. 60 [OSCURATO:PERSONA] disputes the applicant’s arguments. 61 [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 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. 62 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). 63 For the purpose of applying [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel) , T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited). 64 Where the protection of the earlier trade mark extends to the entirety of the [OSCURATO:PERSONA], it is necessary to take into account the perception of the marks at issue by the consumer of the goods in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 2017/1001 exists in part of the [OSCURATO:PERSONA] (see, to that effect, judgment 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 76 and the case-law cited). 1. The relevant public and its level of attention 65 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 – [OSCURATO:PERSONA] (RESPICUR) , T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited). 66 It must be noted, at the outset, as is apparent from paragraphs 27 and 89 of the contested decision, that the earlier mark is an EU trade mark. The relevant territory and public are those of the [OSCURATO:PERSONA]. 67 In paragraphs 71 and 73 of the contested decision, the [OSCURATO:PERSONA] of Appeal found that the goods in question in Class 3 were, essentially, cosmetic products, including perfumes, shampoo and shaving preparations, which targeted the general public and a specialist public, such as beauticians or hairdressers, with the result that the level of attention of the relevant public was, in essence, average. 68 The applicant does not dispute the fact that those goods could target both the general public and professionals in the beauty sector. However, it disputes, in essence, the level of attention of the relevant public, and submits that it should be regarded as high. In the applicant’s view, the degree of attention displayed by the relevant public for body care products, cosmetics or cosmetics for use on the skin is high because consumers tend to be attentive when acquiring those goods, on account of aesthetic considerations or personal preferences, sensitivity, allergies or type of skin and hair. 69 In that regard, first, cosmetic products are generally defined as being products intended to be placed in contact with the surface areas of the human body in order to care for them or beautify them (see, to that effect, judgment of 15 July 2015, [OSCURATO:PERSONA] v OHIM – [OSCURATO:PERSONA] & [OSCURATO:PERSONA] (HOT) , T‑611/13, EU:T:2015:492, paragraph 46). 70 Secondly, it should be borne in mind that the perfumery or cosmetic products included in Class 3 and covered by the mark applied for, some of which are intended to be applied to the human body, are not used for the treatment of diseases and thus constitute everyday products addressed to the average consumer, who is reasonably well informed and reasonably observant and circumspect (see judgment of 13 May 2016, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] – [OSCURATO:PERSONA] (MITOCHRON) , T‑62/15, not published, EU:T:2016:304, paragraph 22 and the case-law cited). 71 [OSCURATO:PERSONA] of Appeal was therefore correct in finding, in paragraph 73 of the contested decision, that the level of attention of the relevant public was, in essence, average. 2. The comparison of the goods 72 The applicant disputes the finding of the [OSCURATO:PERSONA] of Appeal, set out in paragraph 78 of the contested decision, that ‘soap products’ covered by the mark applied for and ‘cosmetics for skin care’ covered by the earlier mark are identical. According to the applicant, if cosmetics and soaps were identical goods, it would not be necessary to protect them separately in the register. [OSCURATO:PERSONA], consumers do not display different levels of attention when they encounter those goods. The applicant submits, consequently, that those goods must be regarded as similar where they share the same distribution channels, which is not always the case. 73 In assessing the similarity between the goods at issue, all the relevant factors relating to the link between those goods should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as the distribution channels of the goods concerned (see judgment of 14 May 2013, Sanco v OHIM – Marsalman (Representation of a chicken) , T‑249/11, EU:T:2013:238, paragraph 21 and the case-law cited). 74 In that sense, it must first be recalled that the [OSCURATO:PERSONA] of Appeal found, correctly, in paragraph 77 of the contested decision, in accordance with [OSCURATO:PERSONA] 2(1)(a) of [OSCURATO:PERSONA] (EC) No 1223/2009 of the [OSCURATO:PERSONA] and of the Council of 30 November 2009 on cosmetic products (OJ 2009 L 342, p. 59), and the case-law cited in paragraph 69 above, that cosmetic products are defined as any substance intended to be placed in contact with the surface areas of the human body in order to care for or beautify them. 75 In that regard, the [OSCURATO:PERSONA] of Appeal was also correct in finding, in paragraph 79 of the contested decision, that the cosmetics intended for skin care are substances and mixtures intended to clean the human body, more specifically the skin, and keep it in good condition while correcting body odours. That definition also covered soap products which, according to the [OSCURATO:PERSONA] , are substances ‘that you use with water for washing yourself or sometimes for washing clothes’. Therefore, it was correct for the [OSCURATO:PERSONA] of Appeal to conclude that the soap products covered by the mark applied for and the cosmetics for skin care covered by the earlier mark are identical. 76 However, contrary to what the applicant argues, the [OSCURATO:PERSONA] of Appeal did not find that the ‘shampoo’ covered by the mark applied for was identical to the ‘cosmetics for skin care’ covered by the earlier mark. [OSCURATO:PERSONA] of Appeal noted correctly, in paragraph 81 of the contested decision, in essence, that shampoo and the other hair care products are similar to an average degree to the ‘cosmetics for skin care’ covered by the earlier mark because they also serve the purpose of cleaning and grooming a specific part of the human body, namely the scalp and the hair, are marketed through the same sales channels and are often produced by the same manufacturers and target similar consumer needs. 77 In the light of the foregoing, it must be found that the [OSCURATO:PERSONA] of Appeal did not make an error of assessment by finding, in essence, that the goods covered by the mark applied for and those covered by the earlier mark were identical or similar. 3. The comparison of the signs 78 According to the case-law, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (see judgment of 28 January 2026, Montepelayo v [OSCURATO:PERSONA] – TRON (TELOTRÓN) , T‑203/25, not published, EU:T:2026:50, paragraph 36 and the case-law cited). 79 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). 80 In addition, it must be noted that the greater or lesser degree of distinctiveness of the elements common to a mark applied for and an earlier mark is one of the relevant factors in the assessment of the similarity of the signs (see, to that effect, judgments of 25 March 2010, Nestlé v OHIM – [OSCURATO:PERSONA] ([OSCURATO:PERSONA] and [OSCURATO:PERSONA]) , T‑5/08 to T‑7/08, EU:T:2010:123, paragraph 61, and of 18 May 2011, [OSCURATO:PERSONA] v OHIM – [OSCURATO:PERSONA]/Lauren ([OSCURATO:PERSONA]) , T‑376/09, not published, EU:T:2011:225, paragraph 35). 81 For the purpose of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings. In making that assessment, account should be taken, in particular, of the inherent characteristics of the element in question in the light of whether it is at all descriptive of the goods or services for which the mark has been registered (judgments of 13 June 2006, Inex v OHIM – Wiseman (Representation of a cowhide) , T‑153/03, EU:T:2006:157, paragraph 35, and of 27 February 2008, Citigroup v OHIM – [OSCURATO:PERSONA] (WORLDLINK) , T‑325/04, not published, EU:T:2008:51, paragraph 66). 82 In the present case, before addressing the question of the visual, phonetic and conceptual similarity of the signs at issue, the assessment carried out by the [OSCURATO:PERSONA] of Appeal of the distinctive and dominant elements of those signs must be examined. (a) The distinctive and dominant elements of the signs at issue 83 In the first place, as regards possible dominant elements in the marks at issue, it should be observed that, according to the case-law, word marks consist entirely of letters, words or associations of words which are written in printed characters in a normal font without any specific graphic element. Such marks therefore do not have a dominant element since, by their nature, none of the constituent elements has a particular graphic or stylistic aspect which is capable of giving it such a character (see judgment of 28 January 2026, TELOTRÓN , T‑203/25, not published, EU:T:2026:50, paragraph 41 and the case-law cited). 84 Accordingly, it must be noted that the earlier mark is a word mark composed of the single element ‘svr’, which has no meaning in relation to the goods in question. It is, therefore, as follows from paragraphs 106 and 111 of the contested decision, distinctive to an average degree. That single element has no dominant elements. 85 As regards the figurative mark applied for, it must be observed that it is lightly stylised, with the result that the consumer’s attention will not be drawn by the graphic design of that mark. In addition, the fact that it may be written in capital letters also will not alter, in the present case, the perception of the word elements by the relevant public, in particular since writing in capital letters is a common practice in the commercial field. 86 In the second place, it should be borne in mind, as regards the case-law cited in paragraph 81 above, that in the assessment of the dominant character of one or more given components of a complex sign, account must be taken, in particular, of the intrinsic qualities of each of those components by comparing them with those of other components. In addition and accessorily, account may be taken of the relative position of the various components within the arrangement of the composite sign (see, to that effect, judgment of 23 October 2002, [OSCURATO:PERSONA] v OHIM – [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) , T‑6/01, EU:T:2002:261, paragraph 35). 87 Where some elements of a trade mark are descriptive of the goods and services in respect of which that mark is protected or the goods and services covered by the application for registration, those elements are recognised as having only a low, or even very low, distinctive character. Most often, it will be possible to recognise those elements as having a distinctive character only because of their combination with the other elements of the mark. Owing to their low, or even very low, distinctive character, descriptive elements of a trade mark are not generally regarded by the public as being dominant in the overall impression conveyed by that mark, unless, particularly because of their position or their size, they appear likely to make an impression on the relevant public and to be remembered by them. That does not mean, however, that the descriptive elements of a mark are necessarily negligible in the overall impression conveyed by that mark. It is necessary, in particular, to examine whether other elements of the mark are likely to dominate, by themselves, the relevant public’s recollection of that mark (see judgment of 18 January 2023, YAplus DBA [OSCURATO:PERSONA] v [OSCURATO:PERSONA] – Vidyanand ([OSCURATO:PERSONA]) , T‑443/21, not published, EU:T:2023:7, paragraph 69 and the case-law cited). 88 In the present case, first, the [OSCURATO:PERSONA] of Appeal observed, correctly, in paragraph 94 of the contested decision, that, while the middle element ‘dl’ of the mark applied for was further stylised on account of a horizontal line within the letter ‘d’, and could be perceived as the intermingling of the letters ‘d’ and ‘e’, that element is the smallest of the three that make up the sign applied for, which makes that stylisation less perceptible. On account of its significantly smaller size and the fact that it is the shortest of the three word elements because it contains only two letters, the distinctive character of that middle element is, in essence, weak, and the relevant public will perceive it as being of secondary importance, since it is a mere connecting element between the first and third word elements. 89 Therefore, because of its lesser size, that element will have little impact in the overall impression of the mark applied for, which will be dominated by the elements ‘loto’ and ‘svr’, which are visually equivalent in size. 90 Secondly, as follows, correctly, from paragraphs 96 and 97 of the contested decision, the element ‘loto’ is an [OSCURATO:PERSONA] word which means ‘lotus’ and has a weak distinctive character, since the average consumer is liable to understand it as identifying one of the ingredients of the goods covered by the mark applied for. 91 Thirdly, the element ‘svr’ of the mark applied for has no meaning in relation to the goods in question, with the result that it has an average distinctive character. 92 In the third place, according to the case-law, the assessment of the similarity of marks must take account of the overall impression produced by those marks, since the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details. Therefore, the [OSCURATO:PERSONA] must not take as its starting point the premiss that the consumer pays greater attention to the beginning of a compound word sign than to its end. It may hold that the end of signs which are the subject of opposition proceedings is more distinctive or dominant than the beginning of those signs or even that one of the elements in those signs is not more distinctive or dominant than the other (see judgment of 1 March 2023, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] – [OSCURATO:PERSONA] (HE&ME) , T‑25/22, not published, EU:T:2023:99, paragraph 56 and the case-law cited). 93 In the present case, first, the element ‘loto’ of the mark applied for is descriptive of the goods in question and, secondly, the element ‘dl’ of that mark has no distinctive character because it is a mere connecting element between the first and last element in the word combination ‘loto dl svr’. In addition, the combination of the two word elements ‘loto dl’ is understood as referring to the word combination ‘lotus of’. 94 [OSCURATO:PERSONA], it should be borne in mind that the greater or lesser degree of distinctiveness of the elements common to the mark applied for and an earlier mark is one of the relevant factors in assessing the similarity of those signs (see judgment of 26 March 2015, [OSCURATO:PERSONA] of [OSCURATO:PERSONA] v OHIM – [OSCURATO:PERSONA] ([OSCURATO:PERSONA] of [OSCURATO:PERSONA] [OSCURATO:PERSONA]) , T‑581/13, not published, EU:T:2015:192, paragraph 41 and the case-law cited). The descriptive, non-distinctive or weakly distinctive elements of a complex mark generally have less weight in the analysis of the similarity between the signs than the elements of greater distinctiveness, which are also more able to dominate the overall impression created by that mark (see, by analogy, judgment of 12 June 2019, Hansson , C‑705/17, EU:C:2019:481, paragraph 53 and the case-law cited). 95 The weakly distinctive character – like the descriptiveness – of an element which is common to two signs considerably reduces the relative weight of such an element in the comparison of those signs, including the visual and phonetic comparisons, even though its presence must be taken into account (see, to that effect, judgments of 15 October 2020, Rothenberger v [OSCURATO:PERSONA] – [OSCURATO:PERSONA] (ROBOX) , T‑49/20, not published, EU:T:2020:492, paragraph 67; of 13 September 2023, Korres v [OSCURATO:PERSONA] – Naos (EST. KORRES 1996 HYDRA-BIOME) , T‑328/22, not published, EU:T:2023:533, paragraph 75; and of 6 November 2024, W. L. Gore & Associates v [OSCURATO:PERSONA] – Angiokard med. Spritzguß (Cardioflow) , T‑1146/23, not published, EU:T:2024:789, paragraph 57). 96 In the light of the foregoing, it is necessary to uphold the findings of the [OSCURATO:PERSONA] of Appeal, as set out in paragraph 97 of the contested decision, that the signs at issue coincide in the common element ‘svr’, which is distinctive and to which the consumer will pay more attention than the weakly distinctive elements ‘loto’ and ‘dl’. (b) The visual and phonetic comparison of the signs at issue 97 [OSCURATO:PERSONA] of Appeal found, in paragraphs 101 and 104 of the contested decision, that the signs at issue had an average degree of visual and phonetic similarity. 98 The applicant argues that the signs at issue are visually distinct in so far as the earlier mark is a short sign composed of three consonants ‘s’, ‘v’ and ‘r’, whereas the mark applied for is a figurative mark with a particular stylisation which will be perceived by the relevant public as the expression ‘loto del sur’. In that sense, it also states that there is no phonetic similarity between the signs at issue. According to the applicant, that assessment is true for both the [OSCURATO:PERSONA]-speaking part of the relevant public and the Spanish-speaking part. 99 [OSCURATO:PERSONA] disputes the applicant’s arguments. 100 As a preliminary point, it should be noted that there is nothing to prevent a determination as to whether there is any visual similarity between a word mark and a figurative mark, since the two types of mark have graphic form capable of creating a visual impression (see judgment of 4 May 2005, Chum v OHIM – [OSCURATO:PERSONA] TV ([OSCURATO:PERSONA]) , T‑359/02, EU:T:2005:156, paragraph 43 and the case-law cited). 101 In the present case, first, it should be noted, as the [OSCURATO:PERSONA] of Appeal did, in paragraph 99 of the contested decision, and as is apparent from paragraph 96 above, that, both visually and phonetically, the signs at issue share the word element ‘svr’ of the earlier mark, reproduced in the mark applied for, which will be pronounced in an identical manner by a non-negligible part of the relevant [OSCURATO:PERSONA]-speaking public. 102 Secondly, in accordance with the case-law cited in paragraphs 94 and 100 above, the [OSCURATO:PERSONA] of Appeal found, correctly, in paragraph 100 of the contested decision, that the elements ‘loto’ and ‘dl’ of the mark applied for do not interfere with the visual impression produced by the element ‘svr’ of that mark, nor do they deflect from the impression produced on the consumer. Those elements are each of secondary importance in the visual perception, by the relevant consumer, of the mark applied for since they have a descriptive or weakly distinctive character. Therefore, they cannot reduce the visual impact of the common element ‘svr’. 103 Thirdly, phonetically, it must be borne in mind, as the [OSCURATO:PERSONA] of Appeal did, in paragraph 102 of the contested decision, that the average consumer tends to abbreviate orally a mark containing several terms in order to make it easier to pronounce (see judgment of 21 December 2021, Dr. Spiller v [OSCURATO:PERSONA] – Rausch ([OSCURATO:PERSONA]. Spiller) , T‑6/20, not published, EU:T:2021:920, paragraph 139 and the case-law cited). 104 In that regard, the [OSCURATO:PERSONA] of Appeal rightly found, in paragraph 103 of the contested decision, that the mark applied for reproduced in its entirety the single element ‘svr’ which makes up the earlier mark. In addition, while it is the last element of the mark applied for to be pronounced, it also has the most syllables, namely three. Since it is an acronym without vowels, it is natural to refer to it by pronouncing each of the letters individually. [OSCURATO:PERSONA], on account of being the longest element, it shifts the phonetic focal point of the mark applied for towards its end. 105 Accordingly, the [OSCURATO:PERSONA] of Appeal did not make any error of assessment by finding, in paragraphs 101 and 104 of the contested decision, that the signs at issue were visually and phonetically similar to an average degree. (c) The conceptual comparison 106 The applicant criticises the [OSCURATO:PERSONA] of Appeal for finding, in paragraph 107 of the contested decision, that it was impossible to carry out a conceptual comparison of the signs at issue. It argues that, in essence, the mark applied for will be pronounced, by the majority of the relevant [OSCURATO:PERSONA]-speaking public, as ‘loto del sur’, which could mean ‘lotus of the south’, as in Spanish, and could consequently convey semantic content identifiable by the relevant [OSCURATO:PERSONA]-speaking public. 107 It must be borne in mind that the purpose of a conceptual comparison is to compare the ‘concepts’ which the signs at issue convey. The term ‘concept’ means, according to the definition given, for example, by the Larousse dictionary, a ‘general and abstract idea used to denote a specific or abstract thought which enables a person to associate with that thought the various perceptions which that person has of it and to organise knowledge about it’ (judgment of 16 June 2021, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] – [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) , T‑368/20, not published, EU:T:2021:372, paragraph 52 and the case-law cited). 108 Similarly, according to the case-law, conceptual similarity implies that the signs at issue have analogous semantic content (see, to that effect, judgment of 11 November 1997, SABEL , C‑251/95, EU:C:1997:528, paragraph 24). It follows that, where the relevant public does not understand the meaning of the words or does not attribute any particular meaning to those signs, a conceptual comparison is not possible (see, to that effect, judgments of 7 February 2018, Şölen Çikolata Gıda Sanayi ve Ticaret v [OSCURATO:PERSONA] – Zaharieva (Packaging for ice-cream cornets) , T‑794/16, not published, EU:T:2018:70, paragraph 76, and of 6 April 2022, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] – [OSCURATO:PERSONA] y Obras (TRAMOSA) , T‑219/21, not published, EU:T:2022:219, paragraph 117 and the case-law cited). 109 In the present case, in the first place, the [OSCURATO:PERSONA] of Appeal found, in paragraph 91 of the contested decision, that the earlier word mark was made up of the group of letters ‘svr’. In addition, it follows, in essence, from paragraphs 103 and 106 of that decision, that the [OSCURATO:PERSONA]-speaking part of the relevant public is more likely to perceive the earlier mark as an abbreviation consisting of three consonants the letters of which would be pronounced individually. That abbreviation has no meaning in [OSCURATO:PERSONA] in relation to the goods in question. 110 Those findings, which are not moreover challenged by the applicant, are well founded and must be upheld. 111 In the second place, as regards the mark applied for, it must be observed that the [OSCURATO:PERSONA] of Appeal correctly found in paragraph 92 of the contested decision, that that mark consisted in a figurative mark made up of the elements ‘loto’, ‘dl’ and ‘svr’. 112 First, as regards the element ‘dl’, the [OSCURATO:PERSONA] of Appeal found, in paragraph 105 of the contested decision, that the mark applied for would be perceived by the [OSCURATO:PERSONA]-speaking part of the relevant public as the preposition ‘del’, which would create a connection between the first word element ‘loto’ and the third element ‘svr’. 113 Secondly, as regards the element ‘loto’, it found, in paragraph 96 of the contested decision, that it was an [OSCURATO:PERSONA] term which means ‘lotus’, which will be perceived by the [OSCURATO:PERSONA]-speaking part of the relevant public as an ingredient of the goods covered by the earlier mark. [OSCURATO:PERSONA], in paragraph 105 of that decision, the [OSCURATO:PERSONA] of Appeal found that the first two word elements of the mark applied for, taken together, will be perceived by the [OSCURATO:PERSONA]-speaking part of the relevant public as forming the expression ‘loto del’, meaning ‘lotus of’. 114 Thirdly, as regards the element ‘svr’, it is apparent, in essence, from a combined reading of paragraphs 91, 105 and 106 of the contested decision, that that element will be perceived as reproducing, in the mark applied for, the group of consonants ‘svr’ that features in the earlier mark, which has no meaning for the [OSCURATO:PERSONA]-speaking part of the relevant public in relation to the goods covered by the signs at issue. 115 The applicant argues that, contrary to the [OSCURATO:PERSONA] of Appeal’s finding, the mark applied for consists in the expression ‘loto del sur’, written in old Latin characters, where the ‘u’ takes the form of a ‘v’. It supports its argument, first, with several examples, taken from, inter alia, a screenshot of the website of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], where the element ‘cvria’ of the institution’s logo is read as ‘curia’ on account of its particular typography. The applicant also relies on other examples which are well known to the [OSCURATO:PERSONA]-speaking part of the relevant public, such as the graphic element which represents the emblem of the [OSCURATO:PERSONA], written in the style ‘repvbblica italiana’, the logo of [OSCURATO:PERSONA] of Rome ([OSCURATO:PERSONA] di Roma), composed of the element ‘stvdivm vrbis’, which is read as ‘studium urbis’, and also, as regards the cosmetics and fashion industry, the mark BULGARI, which is written as BVLGARI. 116 Secondly, the applicant submits that the expression ‘loto del’ corresponds in [OSCURATO:PERSONA] to the expression ‘lotus of’. Like the Spanish preposition ‘del’, the [OSCURATO:PERSONA] proposition ‘del’ is always followed by a noun, which, in the applicant’s view, naturally leads the [OSCURATO:PERSONA] consumer to perceive the last element of the mark applied for as being the word ‘sur’, as it is a logical sequence after the element ‘del’. In that regard, it relies on additional evidence included in Annexes A.5 and A.6 to the application. 117 Thirdly, the applicant disputes the relevance of the evidence submitted by the opponent before the [OSCURATO:PERSONA] of Appeal, relating to the meaning of the term ‘loto’. In its view, Annexes 4 and 5 to the response to the appeal, which refer to the results obtained on the [OSCURATO:PERSONA] ingredient search engine and an article on a Korean cosmetics website respectively, cannot suffice for the conclusion that the element ‘loto’, referring to the lotus, is an ingredient in cosmetics included in Class 3 and widely known in the relevant territory. 118 [OSCURATO:PERSONA] disputes the applicant’s arguments. 119 As a preliminary point, it must be recalled that Annexes A.5 and A.6 are inadmissible on account of their late submission before the [OSCURATO:PERSONA], with the result that they cannot be taken into account in the examination of the second plea in law (see paragraph 57 above). 120 In the present case, in the first place, as regards the element ‘loto’ of the mark applied for, it must be observed, as [OSCURATO:PERSONA] did, that it is apparent from paragraph 96 of the contested decision that the [OSCURATO:PERSONA] of Appeal did not rely only on Annexes 4 and 5 to the response to the appeal, but also based its examination on other elements, such as, for example, Annex 2 to that response, which consists of a screenshot of a website, operating as an online multilingual dictionary, which presents the translation of the term ‘lotus’ in several languages. 121 [OSCURATO:PERSONA], [OSCURATO:PERSONA] also submitted, correctly, that the [OSCURATO:PERSONA] of Appeal found, in paragraph 96 of the contested decision, that it was well known that the consumer is accustomed to the scents of common flowers in perfumes and other cosmetic products, despite their lack of technical knowledge or understanding of the specifics of how plants are used in those goods. According to the [OSCURATO:PERSONA] of Appeal, the immediate natural reaction of a sufficiently large part of the relevant public will be to understand the term ‘loto’, when affixed to cosmetics, as referring to the lotus flower, which is one of the ingredients of the goods in question. 122 In that regard, in accordance with the case-law referred to in paragraph 29 above, first, [OSCURATO:PERSONA] 95 of [OSCURATO:PERSONA] 2017/1001 does not preclude the adjudicating bodies of [OSCURATO:PERSONA] from basing their decisions, in addition to the facts and evidence submitted by the parties, on facts which are well known, that is, which are likely to be known by anyone or which may be learnt from generally accessible sources (see judgment of 12 June 2024, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] – Anheuser-Busch (ULTRA) , T‑170/23, not published, EU:T:2024:375, paragraph 17 and the case-law cited). 123 Secondly, it is also apparent from the case-law that, in essence, an extract from an online dictionary constitutes a source that is generally accessible to the general public and that, therefore, the definitions contained therein constitute well-known facts (see judgment of 12 June 2024, ULTRA , T‑170/23, not published, EU:T:2024:375, paragraph 18 and the case-law cited). 124 Thirdly, it must be observed that, according to settled case-law, an applicant is entitled to submit documents before the [OSCURATO:PERSONA] in order either to prove or to dispute the accuracy of a well-known fact (see judgment of 19 June 2018, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] – [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) , T‑89/17, not published, EU:T:2018:353, paragraph 16 and the case-law cited). 125 It follows, in the present case, that the [OSCURATO:PERSONA] of Appeal did not make an error of assessment by taking into account both Annexes 2, 4 and 5 to the response to the appeal and the translations from the online multilingual dictionary, which is a source that is generally accessible to the public, for the purpose of finding that the element ‘loto’ will be understood as referring to ‘lotus’ for the [OSCURATO:PERSONA]-speaking part of the relevant public. 126 In addition, the applicant has not submitted any evidence capable of calling into question the findings of the [OSCURATO:PERSONA] of Appeal relating to the understanding of the element ‘loto’ by the [OSCURATO:PERSONA]-speaking part of the relevant public and has, furthermore, not submitted any argument or evidence capable of calling into question the findings of the [OSCURATO:PERSONA] of Appeal that follow from Annexes 4 and 5 to the response to the appeal. 127 In the second place, it must be noted that that the applicant does not dispute the findings of the [OSCURATO:PERSONA] of Appeal according to which the first two word elements of the mark applied for, taken together, will be perceived as forming the expression ‘lotus of’. 128 In the third place, as regards the element ‘svr’, it should be borne in mind that, according to the case-law, knowledge of a foreign language cannot, in general, be assumed (see judgment of 14 July 2021, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] – [OSCURATO:PERSONA] & [OSCURATO:PERSONA] (Ø) , T‑399/20, EU:T:2021:442, paragraph 39 and the case-law cited). 129 In the present case, as the [OSCURATO:PERSONA] of Appeal correctly found, in paragraph 106 of the contested decision, it is apparent from the [OSCURATO:PERSONA] case file and, in particular, from Annex 8 to the response to the appeal, that that term does not exist in [OSCURATO:PERSONA]. It is therefore, in the [OSCURATO:PERSONA] of Appeal’s view, unlikely that the abbreviation ‘svr’ would be interpreted by the relevant [OSCURATO:PERSONA]-speaking public as the group of letters ‘sur’ which, moreover, has no meaning for a non-negligible part of that public. 130 In the light of the foregoing, it must be concluded, first, that the earlier mark, composed of the single word element ‘svr’, will be perceived as a string of consonants forming an abbreviation, the letters of which will be pronounced individually. Secondly, as regards the mark applied for, the element ‘loto’, which refers to the lotus plant or lotus flower, together with the element ‘dl’, which will be perceived as the preposition ‘del’, form the word combination ‘loto del’ which will be perceived as meaning ‘lotus of’. Thirdly, since none of the documents before the [OSCURATO:PERSONA] makes it possible to establish that [OSCURATO:PERSONA] consumers would be likely to perceive the element ‘svr’ of the mark applied for as referring to the Spanish term ‘sur’, which means ‘south’, it must be found that the signs at issue share the common element ‘svr’, which has no meaning in relation to the goods at issue. 131 [OSCURATO:PERSONA], as the [OSCURATO:PERSONA] of Appeal correctly found, in paragraph 105 of the contested decision, since the element ‘svr’ has no meaning, the contested mark, taken as a whole, does not convey any clear and immediate meaning either. Moreover, the conceptual impact of the element ‘loto’ is limited given its weak inherent distinctiveness, with the result that the word combination ‘loto dl svr’ is a composite phrase whose overall meaning remains indeterminate. 132 In that regard, it should be borne in mind that, according to the case-law, where neither of the signs at issue has any meaning taken as a whole, it must be found that a conceptual comparison is not possible (see judgment of 21 January 2026, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] – Eggers & Franke (EF) , T‑71/25, not published, EU:T:2026:32, paragraph 64 and the case-law cited). 133 It follows that the [OSCURATO:PERSONA] of Appeal did not make an error of assessment when it found, in paragraph 107 of the contested decision, that a conceptual comparison was impossible, since the signs at issue, each taken as a whole, did not convey specific concepts respectively. 4. The inherent distinctiveness of the earlier mark 134 [OSCURATO:PERSONA] of Appeal found, in paragraph 114 of the contested decision, that the earlier mark ‘svr’ has an average degree of inherent distinctiveness from the perspective of the relevant [OSCURATO:PERSONA]-speaking public. 135 That finding, which, moreover, is not disputed by the applicant, is well founded and must be upheld. 5. The global assessment of the likelihood of confusion 136 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 signs and that of the goods or services covered. Accordingly, a low degree of similarity between the goods or services may be offset by a high degree of similarity between the signs, and vice versa (judgments of 29 September 1998, Canon , C‑39/97, EU:C:1998:442, paragraph 17, and 22 June 1999, [OSCURATO:PERSONA] , C‑342/97, EU:C:1999:323 paragraph 19). 137 Moreover, for the purposes of the global assessment of the likelihood of confusion, account must be taken, in particular, of the fact that the average consumer, within the relevant public, only rarely has the chance to make a direct comparison between the different marks but must place his or her trust in the imperfect picture of them that he or she has kept in his or her mind (judgment of 22 June 1999, [OSCURATO:PERSONA] , C‑342/97, EU:C:1999:323, paragraph 26). [OSCURATO:PERSONA], a likelihood of confusion could be found to exist only if the relevant public were likely to be misled as to the commercial origin of the goods in question (see, to that effect, judgment of 24 November 2021, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] – [OSCURATO:PERSONA] (Riviva) , T‑551/20, not published, EU:T:2021:816, paragraph 86). 138 In addition, according to the [OSCURATO:PERSONA] of Justice, where the goods or services are identical there may be a likelihood of confusion on the part of the public where the contested sign is composed of the juxtaposition of the company name of another party with a registered mark which has average distinctiveness and which, without alone determining the overall impression conveyed by the composite sign, still has an independent distinctive role therein (judgments of 6 October 2005, Medion , C‑120/04, EU:C:2005:594, paragraph 37, and of 13 October 2021, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] – [OSCURATO:PERSONA] (UNI-MAX) , T‑591/20, not published, EU:T:2021:694, paragraph 28). 139 In the present case, the [OSCURATO:PERSONA] of Appeal found, in paragraphs 113 and 115 of the contested decision, that there was a likelihood of confusion as regards the commercial origin of the goods in question, in the light of the fact that consumers might perceive the mark applied for as a sub-brand of the product line of the earlier mark SVR. 140 In that regard, first, as found in paragraph 77 above, the [OSCURATO:PERSONA] of Appeal was justified in finding that the goods covered by the mark applied for were identical or similar to those covered by the earlier mark. Secondly, the signs at issue contain the common and distinctive word element ‘svr’ (see paragraph 96 above). Thirdly, the [OSCURATO:PERSONA] of Appeal was also justified in finding that the signs were visually and phonetically similar to an average degree (see paragraph 105 above). Fourthly, a conceptual comparison of the two signs is impossible because they do not convey a specific concept (see paragraphs 106 to 133 above). Fifthly, the [OSCURATO:PERSONA] of Appeal was correct in finding that the earlier mark had an average degree of inherent distinctiveness (see paragraphs 134 and 135 above). Sixthly, the [OSCURATO:PERSONA] of Appeal was also correct in finding that the element ‘svr’, which makes up the earlier mark, was reproduced in its entirety in the mark applied for, and that it occupied, on account of its average degree of inherent distinctiveness from the perspective of the relevant [OSCURATO:PERSONA]-speaking public, a dominant and independent position, with the result that, when encountering the mark applied for, in the context of the goods in question, the [OSCURATO:PERSONA]-speaking part of the relevant public could be led to believe that the mark applied for is a sub-brand of the product line of the earlier mark based on the element ‘loto’, referring to the lotus flower. 141 It follows that the relevant public, with an average level of attention, may reasonably believe, when faced with the mark applied for, that the goods covered by that mark and those covered by the earlier mark, which are identical or similar, have the same commercial origin. 142 In those circumstances, the [OSCURATO:PERSONA] of Appeal did not make an error of assessment in finding that there was a likelihood of confusion within the meaning of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 2017/1001. 143 It follows that the second plea in law must be rejected as unfounded. 144 Therefore, both the application for annulment of the contested decision and, consequently, the application for alteration of that decision must be dismissed in their entirety. IV. Costs 145 [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. 146 Although the applicant has been unsuccessful, [OSCURATO:PERSONA] has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened. Since no hearing was held, each party must be ordered to bear its own costs. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the action; 2. [OSCURATO:SOCIETA]. and the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) to bear their own costs. Škvařilová-[OSCURATO:PERSONA] in open court in Luxembourg on 9 September 2026. V. [OSCURATO:PERSONA] M. van der [OSCURATO:PERSONA] * Language of the case: English.