T-309/25

JUDGMENT OF THE GENERAL COURT (Seventh Chamber) 8 July 2026 (*) ( EU trade mark – Opposition proceedings – Application for the EU figurative mark BIO-GROUP MEDICAL SYSTEM – Earlier EU figurative mark BIOGROUP – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 ) In Case T‑309/25, SCM Biogroup, established in Levallois-Perret (France), represented by S. Rigaud, A. Arnal and S. Mignot, lawyers, applicant, v European Union Intellectual Property Office (EUIPO), represented by E. Lobotková, C. Bovar, T. Frydendahl and V. Ruzek, acting as Agents, defendant, the other party to the proceedings before the Board of Appeal of EUIPO being Bio Group Medical System Srl, established in Rimini (Italy), THE GENERAL COURT (Seventh Chamber), composed of K. Kecsmár (Rapporteur), President, P. Nihoul and U. Öberg, Judges, Registrar: J. Čuboň, Administrator, having regard to the written part of the procedure, further to the hearing on 24 March 2026, gives the following Judgment 1        By its action under Article 263 TFEU, the applicant, SCM Biogroup, seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 14 March 2025 (Case R 877/2024-5) (‘the contested decision’). Background to the dispute 2        On 4 April 2022, the other party to the proceedings before the Board of Appeal of EUIPO, Bio Group Medical System Srl, filed with EUIPO an application for registration of an EU trade mark in respect of the following figurative sign: 3        The mark applied for covered goods and services in Class 42 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding to the following description: ‘Design and development of testing and analysis methods; computer aided scientific testing; computer aided diagnostic testing services; sampling for contamination; environmental testing; technological engineering analysis; analysis of human tissues for medical research; clinical research; bacteriological research and testing; analysis of human serum for medical research; consultancy services for analysing information systems; advisory services relating to computer systems analysis; development and test of chemical production methods; laboratory analysis in the field of chemistry; chemical engineering; chemical analysis; chemistry services; chemical research; chemistry consultation; scientific research relating to chemistry; chemical research laboratory services; preparation of reports relating to chemical research; development of measuring and testing methods; testing, analysis and evaluation of the goods and services of others for the purpose of certification; design and development of diagnostic apparatus; design of diagnostic apparatus and equipment; research and development in the field of diagnostic preparations; computer aided scientific analysis services; scientific research and analysis; scientific analysis; conducting sampling and analysis services to check for contamination; conducting sampling and analysis services to assess pollution levels; bacteriological research and analysis; bacteriological analysis; consultancy in the field of computer system analysis; computer system analysis; testing, authentication and quality control’. 4        On 11 July 2022, the applicant filed a notice of opposition to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above. 5        The opposition was based on the following earlier rights: –        the EU figurative mark registered on 3 February 2021 under number 18 311 178 for, inter alia, services in Class 42, reproduced below: –        the trade name SCM BIOGROUP, used in the course of trade in Belgium, France, Luxembourg, Portugal and Spain, and –        the domain name biogroup.fr, used in the course of trade in those same Member States. 6        The grounds relied on in support of the opposition were those set out in Article 8(1)(b) and Article 8(4) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1). 7        On 28 February 2024, the Opposition Division upheld the opposition on the ground that there was a likelihood of confusion between the mark applied for and the earlier mark. 8        On 26 April 2024, the other party to the proceedings filed a notice of appeal with EUIPO against the Opposition Division’s decision. 9        By the contested decision, the Board of Appeal annulled the decision of the Opposition Division and rejected the opposition in its entirety. First, it found that, for the purposes of Article 8(1)(b) of Regulation 2017/1001, there was no likelihood of confusion between the earlier mark and the mark applied for. Secondly, it also found that, for the purposes of Article 8(4) of that regulation, there was no likelihood of confusion between the mark applied for, on the one hand, and the company name SCM BIOGROUP and the domain name biogroup.fr, on the other. Forms of order sought 10      The applicant claims that the Court should: –        annul the contested decision; –        order EUIPO to pay the costs. 11      EUIPO contends that the Court should: –        dismiss the action; –        order the applicant to pay the costs in the event that a hearing is held. Law 12      The applicant relies on two pleas in law alleging, first, infringement of Article 8(1)(b) of Regulation 2017/1001 and, secondly, infringement of Article 8(4) of that regulation. 13      In the context of the first plea, the applicant submits that the Board of Appeal erred, first, in defining the relevant public and assessing its level of attention, secondly, in comparing the signs at issue, thirdly, in assessing the distinctive character of the earlier mark, and fourthly, in its overall assessment of the likelihood of confusion. The first part of the first plea, relating to the relevant public and its level of attention 14      The relevant public for the purposes of the assessment of the likelihood of confusion is composed of users likely to use both the goods or services covered by the earlier mark and those covered by the mark applied for. Thus, as a general rule, where the goods or services covered by one of the marks at issue are included in the broader designation covered by the other mark, the relevant public is defined by reference to the more specific wording (see judgment of 24 May 2011, ancotel v OHIM – Acotel (ancotel.), T‑408/09, not published, EU:T:2011:241, paragraphs 38 and 39 and the case-law cited). 15      Furthermore, it must be recalled that, 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, to that effect, judgment of 13 February 2007, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42). 16      In the present case, the Board of Appeal found that the goods and services at issue predominantly targeted professionals in the relevant field, who had a relatively high level of attention taking into account the specialised nature of the goods and services purchased, and that the relevant territory was the European Union. 17      The applicant challenges the Board of Appeal’s definition of the relevant public, without raising any issue as to the relevant territory. It argues that the goods and services at issue are not aimed only at professionals with a high level of attention, as the Board of Appeal found, but also at the general public, which has an average level of attention. Certain services covered by the application for registration of the mark applied for, such as ‘analysis of human serum and tissues for medical research’, are, it submits, often sought by non-professionals. Furthermore, the general public visits medical analysis laboratories to have various biological, bacteriological or medical analyses performed. 18      EUIPO disputes the applicant’s arguments. 19      In that regard, it should be observed, first of all, that the Board of Appeal did not limit the relevant public to professionals alone, but stated, in paragraph 40 of the contested decision, that the goods and services in question ‘predominantly’ targeted professionals. Contrary to what the applicant, in essence, submits, the Board of Appeal therefore did not rule out, at least implicitly, that another part of the relevant public, even if it was marginal, was composed of non-professionals or the general public. 20      Next, the services referred to by the applicant in its application do not call into question the Board of Appeal’s assessment of the composition of the relevant public. 21      ‘Analysis of human tissues for medical research’ and ‘analysis of human serum for medical research’, which are included in the services falling within Class 42 covered by the application for registration of the mark applied for, form part, as their wording indicates, of research activities, which are primarily aimed at professionals. Furthermore, according to the explanatory note to the Nice Agreement, in the version which is applicable having regard to the date of the application for registration of the mark applied for, ‘Class 42 includes mainly services provided by persons in relation to the theoretical and practical aspects of complex fields of activities’. In those circumstances, it does not appear that the services in question are aimed at any public other than one comprised of professionals, contrary to the applicant’s assertion, which, moreover, is not supported by any other evidence. 22      As regards the services offered by medical analysis laboratories with regard to the carrying out of various biological, bacteriological or medical analyses, which the general public might use, these do not fall within Class 42 but within Class 44. According to the explanatory note referred to above, Class 44 includes, in particular, ‘medical clinic services and medical analysis services for diagnostic and treatment purposes provided by medical laboratories, such as x-ray examinations and taking of blood samples’. Furthermore, it should be observed that that explanatory note states that ‘medical services’ in Class 44 are not included in Class 42. 23      Lastly, as regards the level of attention of the relevant public, the Board of Appeal found that it was relatively high taking into account the specialised nature of the goods and services purchased. Even supposing that a marginal proportion of the relevant public consisted of non-professionals or of the general public, it suffices to state that the Class 42 services in question are aimed at an informed public who will display a level of attention significantly above average, and not an average level of attention as the applicant submits. 24      Generally speaking, the relevant public, including where it is the general public, displays at least a high level of attention, where the goods or services at issue relate to health (see, to that effect, judgments of 8 October 2014, Laboratoires Polive v OHIM – Arbora & Ausonia (DODIE), T‑77/13, not published, EU:T:2014:862, paragraph 25 and the case-law cited; of 20 October 2021, St. Hippolyt v EUIPO – Elephant (Strong like nature), T‑352/20, not published, EU:T:2021:720, paragraph 24 and the case-law cited; and of 4 December 2024, Jula v EUIPO – Mula (Mula), T‑22/24, not published, EU:T:2024:875, paragraph 30 and the case-law cited). 25      Consequently, the Board of Appeal did not err in finding that the goods and services at issue predominantly targeted professionals in the field covered by the services in Class 42, who have a relatively high level of attention taking into account the specialised nature of the goods and services purchased. 26      The first part of the first plea must therefore be rejected. The second part of the first plea, relating to the comparison of the signs at issue 27      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). 28      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). 29      It must be observed 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, Royal County of Berkshire Polo Club v OHIM – Lifestyle Equities (Royal County of Berkshire POLO CLUB), 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 composite trade 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 the mark (see, to that effect, judgment of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 53 and the case-law cited). 30      Before addressing the question of the visual, phonetic and conceptual similarity of the marks at issue, it is necessary to examine the assessment of the distinctive and dominant elements of those marks carried out by the Board of Appeal. The distinctive and dominant elements –       The distinctive character of the element common to the signs at issue 31      In the present case, the Board of Appeal found, in essence, that the combination of the two terms ‘bio’ and ‘group’ to form the element ‘biogroup’ or ‘bio-group’, irrespective of the separation by a dash, would be associated by the relevant public with a group providing the services at issue, that it would be recognised in both of the marks at issue as descriptive of the relevant services from the perspective of that public throughout the territory and, consequently, that it had weak distinctive character. 32      The applicant submits that the juxtaposition of the terms ‘bio’ and ‘group’ creates a single fanciful term, namely ‘biogroup’, which is not used in any parlance, whether professional, common or colloquial, to designate any of the goods and services concerned. It argues that the Board of Appeal erred in its assessment of the distinctive character of that juxtaposition, by not finding that it could create an unusual expression or word that would be unfamiliar to the English-speaking public and even more so to the non-English-speaking public, and by failing to take into account, in that regard, the case-law arising from the judgment of 20 September 2001, Procter & Gamble v OHIM (C‑383/99 P, EU:C:2001:461). 33      EUIPO disputes the applicant’s arguments. 34      As a preliminary point, it should be noted that the applicant does not challenge the findings made by the Board of Appeal in paragraph 52 of the contested decision, namely that the relevant public would understand the term ‘bio’ as referring to ‘biological’, ‘living matter’ and ‘environmentally friendly’, and the term ‘group’ as referring to a group of commercial undertakings. In the present case, having regard to the evidence in the file, there is no reason to call those findings of the Board of Appeal into question. 35      Having regard to the applicant’s line of argument, it must be recalled that, according to the case-law, any perceptible difference between the combination of words submitted for registration and the terms used in the common parlance of the relevant class of consumers to designate the goods or services or their essential characteristics is apt to confer distinctive character on the word combination enabling it to be registered as a trade mark (judgment of 20 September 2001, Procter & Gamble v OHIM, C‑383/99 P, EU:C:2001:461, paragraph 40). 36      It is also apparent from the case-law that, in principle, a mere juxtaposition of several descriptive terms remains descriptive, unless, because of the unusual nature of the combination of those terms, the sign at issue creates an impression which is sufficiently far removed from that produced by the meaning of the terms of which it is composed, with the result that that sign, taken as a whole, is more than the sum of its parts. Simply juxtaposing a number of descriptive elements without making any unusual changes, in particular syntactic or semantic changes, can only produce a mark which is descriptive in its entirety (see, to that effect, judgments of 8 July 2008, Lancôme v OHIM – CMS Hasche Sigle (COLOR EDITION), T‑160/07, EU:T:2008:261, paragraph 49, and of 14 May 2025, Visable v EUIPO (Europages), T‑323/24, not published, EU:T:2025:486, paragraph 21 and the case-law cited). 37      As regards the element ‘biogroup’ or ‘bio-group’, which is the only element common to the signs at issue, first, it must be observed that the terms ‘bio’ and ‘group’ of which it is composed are common, that the relevant public is able to identify and dissect them within that element, as the Board of Appeal pointed out in paragraph 51 of the contested decision, and that they are easily understood by that public, which consists mainly of professionals in the field covered by the services in Class 42. It must also be borne in mind that English is often used in scientific circles (see, to that effect, judgment of 19 January 2005, Proteome v OHIM (BIOKNOWLEDGE), T‑387/03, EU:T:2005:14, paragraph 33). 38      Secondly, contrary to the applicant’s argument, the juxtaposition of the terms ‘bio’ and ‘group’, to form the element ‘biogroup’ or ‘bio-group’, does not create a fanciful term. Indeed, the combination of the two terms in question does not alter their meaning or scope or require any intellectual effort to be made by the relevant public in order to understand the message conveyed. As the Board of Appeal found in paragraph 53 of the contested decision, the element ‘biogroup’ or ‘bio-group’ will be associated by the relevant public with a group of undertakings providing services in Class 42, by reference to the ideas conveyed by the terms of which it is composed, in particular ‘biological’ or ‘living matter’ for the term ‘bio’ and a commercial group of undertakings for the term ‘group’. 39      Consequently, in so far as the element ‘biogroup’ or ‘bio-group’, taken as a whole, is no more than the sum of its parts, the applicant is not justified in relying on the case-law referred to in paragraph 35 above. 40      Consequently, it must be held that the Board of Appeal did not err in finding that the combination of the terms ‘bio’ and ‘group’, to form the element ‘biogroup’ or ‘bio-group’ which is common to the signs at issue, irrespective of the separation by a dash in the mark applied for, had weak distinctive character. –       The dominant character of the elements of which the signs at issue consist 41      With regard to the assessment of the dominant character of one or more given components of a composite trade mark, 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 mark (judgment of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 35). 42      The weak distinctive character of an element of a composite mark does not necessarily imply that that element cannot constitute a dominant element since, because, in particular, of its position in the sign or its size, it may 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). 43      The fact that one of the two words making up a word mark is descriptive does not, in itself, allow the conclusion to be drawn that that word is insignificant in the overall impression produced by that mark (judgment of 11 December 2014, Oracle America v OHIM – Aava Mobile (AAVA CORE), T‑618/13, not published, EU:T:2014:1053, paragraph 33). 44      Where a trade mark is composed of word and figurative elements, the former are, in principle, more distinctive than the latter, since the average consumer will more easily refer to the goods at issue by citing the name of the trade mark than by describing its figurative element (judgment of 28 September 2022, Copal Tree Brands v EUIPO – Sumol + Compal Marcas (COPAL TREE), T‑572/21, not published, EU:T:2022:594, paragraph 31 and the case-law cited). 45      In the present case, the Board of Appeal found that the marks at issue did not contain any element that could be regarded as clearly more dominant than the other elements making up each of those marks. 46      The applicant submits, first, that the unusual juxtaposition of the two terms ‘bio’ and ‘group’ gives that juxtaposition sufficient distinctive character which should have been taken into account in assessing the dominant elements of the marks at issue. Secondly, it submits that, in accordance with the case-law, the Board of Appeal should have found that the element ‘biogroup’ or ‘bio-group’ in the marks at issue would particularly attract the attention of the public and was the dominant element in the signs. In that regard, the applicant argues that the Board of Appeal should have had regard to the case-law arising from the judgment of 21 June 2023, Vitromed v EUIPO – Vitromed Healthcare (VITROMED Germany) (T‑514/22, not published, EU:T:2023:350). 47      EUIPO disputes the applicant’s arguments. Given that the two signs at issue are composite marks consisting exclusively of elements that are either descriptive or only weakly distinctive, none of those elements can be regarded as particularly dominant in the overall impression they produce. 48      In that regard, it should be observed at the outset that part of the applicant’s line of argument is based on the premiss that the unusual juxtaposition of the terms ‘bio’ and ‘group’ confers distinctive character on the element ‘biogroup’ or ‘bio-group’ which is common to the signs at issue. Since that premiss is incorrect, as concluded in paragraph 40 above, that part of the applicant’s line of argument must also be rejected. 49      In so far as the applicant submits that the Board of Appeal should have found that the element ‘biogroup’ or ‘bio-group’ was the dominant element within the marks at issue, it should be observed, in the light of the case-law referred to in paragraph 42 above, that the fact that the combination of the terms ‘bio’ and ‘group’, forming the element ‘biogroup’ or ‘bio-group’ common to the signs at issue, has weak distinctive character does not necessarily imply that that element cannot constitute a dominant element since, because, in particular, of its position in the sign or its size, it may make an impression on consumers and be remembered by them. 50      In the present case, in paragraph 53 of the contested decision, the Board of Appeal found that the combination of the terms ‘bio’ and ‘group’, forming the element ‘biogroup’ or ‘bio-group’ common to the signs at issue, had weak distinctive character. 51      In paragraph 55 of the contested decision, the Board of Appeal found that the word elements ‘medical system’ of the mark applied for had no distinctive character. In paragraph 56 of that decision, it found that the typeface of the signs and the dash in the mark applied for were of a decorative nature and that their role in the comparison of the signs was very limited. 52      In paragraph 57 of the contested decision, the Board of Appeal also found that each of the figurative elements present in the marks at issue referred to the first letter of the term ‘bio’ and had a certain degree of distinctiveness. In that regard, in paragraph 59 of that decision, it found that it could not be ruled out that at least part of the relevant public displaying a relatively high level of attention would recognise in the figurative element of the mark applied for the characteristic forms of a microscope. 53      At this stage, it should be observed that the Board of Appeal found that the only elements possessing distinctive character within the signs at issue were, to varying degrees, the combination of the terms ‘bio’ and ‘group’ to form the word element ‘biogroup’ or ‘bio-group’ common to the signs at issue, which had weak distinctive character, and each of the figurative elements present in those signs, which referred to the first letter of the term ‘bio’ and had a certain degree of distinctiveness. 54      However, it should be noted that, as the applicant submits, the word element ‘biogroup’ or ‘bio-group’ is more likely than the other elements to make an impression on consumers and be remembered by them, in so far as, in the mark applied for, it stands out due to its length, size, central position and dark colour (which contrasts with the light green of the other elements) and, in the earlier mark, it is the only word element. 55      The fact, highlighted by EUIPO, that the marks at issue are composite marks consisting exclusively of elements that are either descriptive or only weakly distinctive is not sufficient to rule out the possibility that one of those elements may dominate the other elements in the marks in question, having regard to the case-law referred to in paragraphs 42 and 43 above. 56      Consequently, having regard to the case-law referred to in paragraph 44 above, also referred to in paragraph 60 of the contested decision, it must be held that the Board of Appeal should have concluded from its own findings that the word element ‘biogroup’ or ‘bio-group’ dominated the other elements present in the marks at issue and, in particular, each of the figurative elements referring to the first letter of the term ‘bio’, in so far as, in principle, the average consumer will more easily refer to the goods at issue by citing the name than by describing the figurative element of those marks. 57      Consequently, by finding as it did in paragraph 61 of the contested decision and by concluding, without justification, that the signs at issue contained no element that could be considered clearly more dominant than other elements, the Board of Appeal made an error of assessment in its examination of the dominant character of the elements present in the signs at issue. The comparison of the signs at issue 58      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). –       The visual comparison 59      In the present case, the Board of Appeal found, in essence, that the signs at issue exhibited, at most, a below-average degree of visual similarity, given that the shared sequences of words ‘biogroup’ and ‘bio-group’ in the signs at issue were descriptive of the relevant services from the perspective of the relevant public throughout the territory of the European Union, and having regard to the differences between those signs in terms of their figurative elements, their colours and the additional word elements in the sign applied for, even though those word elements are non-distinctive. 60      The applicant submits that the marks at issue exhibit an above-average or, at the very least, an average degree of visual similarity. It argues that the Board of Appeal’s conclusion was based on its incorrect assessment of the distinctive and dominant character of the combination ‘biogroup’ or ‘bio-group’. It also submits that the Board of Appeal failed to consider the fact that the upper part of the figurative element within the mark applied for is reminiscent of the figurative element of the earlier mark, as well as the fact that the colours black and green do not negate the similarities between the signs at issue, because those colours are very commonly used. Furthermore, the case-law arising from the judgment of 21 June 2023, VITROMED Germany (T‑514/22, not published, EU:T:2023:350), is fully applicable to the present case. 61      EUIPO disputes the applicant’s arguments. 62      In that regard, in view of the error noted in paragraph 54 above, in so far as the Board of Appeal should have taken account of the fact that the element ‘biogroup’ or ‘bio-group’, common to the signs at issue, dominated the other elements present in each of them, it must be held that the Board was not entitled to find that the signs at issue were visually similar to a below-average degree. 63      Indeed, even taking into account the differences in the signs at issue, which consist of purely descriptive or decorative elements, with the exception of the figurative element referring to the first letter of the term ‘bio’, which possesses a certain degree of distinctive character, it must be stated that the word element ‘biogroup’ or ‘bio-group’ stands out, in the mark applied for, due to its length, size, central position and dark colour (which contrasts with the light green of the other elements) and, in the earlier mark, by virtue of the fact that, although placed after the figurative element, it is the only word element to which the public will more easily refer. Given that the word element ‘biogroup’ or ‘bio-group’ dominates the other elements, it is such as to confer on the signs at issue an average degree of visual similarity. 64      Accordingly, it must be held that the Board of Appeal made an error in its assessment of the visual similarity of the signs at issue. –       The phonetic comparison 65      In the present case, in paragraphs 66 to 68 of the contested decision, the Board of Appeal found that the signs at issue exhibited, at most, a below-average degree of phonetic similarity, considering that the pronunciation of those signs coincided in the sound of the letter group ‘biogroup’, that the figurative element of the signs resembling the letter ‘b’ would not be pronounced, and that although those signs differed in that the additional element ‘medical system’ was present in the sign applied for, there was nothing to indicate that the relevant public would refer to one element rather than another as regards the pronunciation of the word elements, as both combinations of word elements consisted of weak or non-distinctive elements. 66      The applicant submits that, in addition to having distinctive character and constituting the dominant element of the signs at issue, the elements ‘biogroup’ and ‘bio-group’ are composed of the same eight letters, placed in exactly the same order, and are therefore phonetically identical. As regards the element ‘medical system’, the applicant submits that, in so far as it is purely descriptive and ancillary and is not likely to be pronounced by the relevant public, the Board of Appeal was wrong to find, in paragraph 67 of the contested decision, that there was nothing to indicate that the relevant public would refer to one element rather than another as regards the pronunciation of the word elements. The applicant also relies on the decision-making practice of the EUIPO Opposition Divisions and the case-law arising from the judgment of 21 June 2023, VITROMED Germany (T‑514/22, not published, EU:T:2023:350), arguing that the signs at issue exhibit a high or, at the very least, an above-average degree of phonetic similarity. 67      EUIPO disputes the applicant’s arguments. 68      In that regard, in view of the error noted in paragraph 54 above, in so far as the Board of Appeal should have taken account of the fact that the element ‘biogroup’ or ‘bio-group’, common to the signs at issue, dominated the other elements present in each of them, it must be held that the Board was not entitled to find that the signs at issue were phonetically similar to a below-average degree. 69      Indeed, the pronunciation of the signs at issue coincides in the sound of the letters of the element ‘biogroup’ or ‘bio-group’, whereas the figurative elements referring to the first letter of the term ‘bio’ and the other word element ‘medical system’ present in the mark applied for, which is non-distinctive, are not likely to affect the way in which the relevant public would pronounce the signs at issue. It follows that those signs are phonetically similar to at least an average degree. 70      Accordingly, it must be held that the Board of Appeal made an error in its assessment of the phonetic similarity of the signs at issue. –       The conceptual comparison 71      In the present case, the Board of Appeal stated that the signs at issue were similar to the extent that they conveyed the concept that the relevant public associated with the company name BIOGROUP or BIO-GROUP. It found, however, that the impact of that concept had to be regarded as very low because the expression in question was descriptive of the goods at issue. The Board of Appeal also took into account the fact that the signs at issue differed with regard to the concept of ‘medical system’, which, however, was non-distinctive, and as such had a low degree of impact, and, for part of the public, with regard to the concept of a green microscope, which also had a low degree of impact in relation to the services at issue. 72      The applicant submits, in addition to claiming that the Board of Appeal wrongly based its decision on the terms ‘biogroup’ or ‘bio-group’ lacking distinctive character, that the signs at issue are conceptually very similar because they consist in the singular association of the two terms ‘bio’, which may refer to the idea of biological or living matter, and ‘group’, which refers to the idea of a business group, in the same order. It also submits that the Board of Appeal found that the signs at issue differed with regard to the concept of ‘medical system’, when that expression evokes the concepts of biology, environment and healthcare to which the term ‘bio’ refers, as well as the concept of an organisation or business to which the term ‘group’ refers. Furthermore, the applicant claims that the figurative element of the mark applied for does not evoke a microscope, as the Board of Appeal found, but the letter ‘b’, and thus the first letter of the word ‘biogroup’. Even assuming that it might evoke a microscope for some people, that would still call to mind the activity of a medical laboratory and would not provide any basis for a conceptual distinction between the signs at issue. Accordingly, the applicant submits that the signs at issue exhibit a high or, at the very least, an average degree of conceptual similarity. In support of that position, it cites the case-law arising from the judgment of 21 June 2023, VITROMED Germany (T‑514/22, not published, EU:T:2023:350). 73      EUIPO disputes the applicant’s arguments. 74      In that regard, even bearing in mind that the Board of Appeal should have taken account of the fact that the element ‘biogroup’ or ‘bio-group’, common to the signs at issue, dominated the other elements present in each of them, it must be stated that it did not err in finding that the conceptual similarity between the signs at issue was weak. 75      First, in so far as part of the applicant’s line of argument is based on the premiss that the unusual juxtaposition of the words ‘bio’ and ‘group’ confers distinctive character on the element ‘biogroup’ or ‘bio-group’ common to the signs at issue, as has been held in paragraph 40 above, that part must also be rejected. 76      Furthermore, it must be observed that the applicant does not dispute, as noted in paragraph 34 above, that the relevant public would understand the term ‘bio’ as referring to ‘biological’, ‘living matter’ and ‘environmentally friendly’ and the term ‘group’ as referring to a group of undertakings. 77      In so far as, as is apparent from paragraph 38 above, the combination of those two terms does not alter their meaning or scope or require any intellectual effort to be made by the relevant public in order to understand the message conveyed, such that, as the Board of Appeal stated in paragraph 53 of the contested decision, the element ‘biogroup’ or ‘bio-group’ will be associated by the relevant public with a group of undertakings providing services in Class 42, by reference to the ideas conveyed by the terms in question, it must be held that the Board of Appeal did not err in finding that the impact of the concept conveyed by that element was to be regarded as very weak, since the expression in question was descriptive of the goods at issue. 78      Secondly, whilst the applicant challenges the Board of Appeal’s assessment that the signs at issue differed as regards the concept of a ‘medical system’ and as regards that of a microscope, it does not call into question the Board of Appeal’s assessment that the concepts conveyed by those elements had, in any event, a low degree of impact. 79      Accordingly, it must be held that the Board of Appeal did not err in its assessment of the conceptual similarity of the signs at issue. 80      Consequently, the second part of the first plea must be upheld, in that the Board of Appeal made an error of assessment in its examination of the dominant nature of the elements present in the signs at issue, which resulted in an error of assessment on its part as regards the visual and phonetic similarity of the signs at issue. The third part of the first plea, relating to the distinctive character of the earlier mark 81      As is apparent from recital 11 of Regulation 2017/1001, the assessment of the likelihood of confusion depends on numerous factors, in particular the public’s recognition of the trade mark on the market in question. The more distinctive the trade mark, the greater will be the likelihood of confusion, and therefore marks with a highly distinctive character, either per se or because of their recognition by the public, enjoy broader protection than marks with less distinctive character (see, by analogy, judgments of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 24; of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 18; and of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 20). 82      The existence of an unusually high level of distinctiveness as a result of the public’s recognition of a mark on the market necessarily presupposes that at least a significant part of the relevant public is familiar with it, without its necessarily having to have a reputation within the meaning of Article 8(5) of Regulation 2017/1001. It is not possible to state in general terms, for example by referring to specific percentages relating to the degree of recognition attained by the mark within the relevant section of the public, that a mark has a highly distinctive character. Nevertheless, it must be acknowledged that there is a certain interdependence between the public’s recognition of a mark and its distinctive character in that the more the mark is recognised by the target public, the more its distinctive character is strengthened. In order to assess whether a mark has a highly distinctive character as a result of the public’s recognition of it, all the relevant facts of the case must be taken into consideration, in particular the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant section of the public which, because of the mark, identifies the goods or services as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (see, to that effect, judgment of 12 July 2006, Vitakraft-Werke Wührmann v OHIM – Johnson’s Veterinary Products (VITACOAT), T‑277/04, EU:T:2006:202, paragraphs 34 and 35 and the case-law cited). 83      In the present case, the Board of Appeal found that the evidence produced by the applicant was not sufficient to demonstrate that the earlier rights it claimed were particularly distinctive by virtue of intensive use or reputation. It stated that the evidence in question consisted of references to extracts from the website ‘biogroup.fr’ and articles about Biogroup laboratories, which were not sufficiently supported by other objective documents. Accordingly, the Board of Appeal stated, in essence, that the assessment of the distinctive character of the earlier mark had to be based on its intrinsic distinctive character and found, referring to the considerations it had previously set out regarding the distinctive and dominant elements of the signs at issue, that the minimal degree of distinctive character possessed by the earlier mark resulted mainly from the figurative element, such that the distinctive character of the earlier mark had to be regarded as weak in relation to the services at issue and to the relevant public. 84      The applicant submits, in addition to arguing that the Board of Appeal erred in finding that the element ‘biogroup’ had distinctive character for the relevant public by virtue of its singular construction, that the Board of Appeal should not have had regard to the case giving rise to the judgment of 18 January 2023, YAplus DBA Yoga Alliance v EUIPO – Vidyanand (YOGA ALLIANCE INDIA INTERNATIONAL) (T‑443/21, not published, EU:T:2023:7), which concerned marks consisting of sequences of words, given that the present case concerns a single word. It also submits that the Board of Appeal did not give due weight to the evidence of use submitted, when that evidence was substantial and demonstrated that the earlier mark played a key role in the medical analysis sector. 85      EUIPO disputes the applicant’s arguments. 86      In that regard, in so far as part of the applicant’s line of argument is based on the premiss that the unusual juxtaposition of the words ‘bio’ and ‘group’ confers distinctive character on the element ‘biogroup’ or ‘bio-group’ common to the signs at issue, as has been held in paragraph 40 above, that part must also be rejected. 87      In the first place, as regards the evidence submitted by the applicant purporting to show that the earlier mark has acquired distinctive character through use or reputation, it must be observed, first of all, that that evidence consists of extracts from the website ‘biogroup.fr’ and articles about Biogroup laboratories, accompanied by a free translation into English, together with an invitation to a webinar and photographs of laboratory façades on which the earlier mark is reproduced, with some modifications. 88      Next, it must be observed that the Board of Appeal did not disregard the evidence submitted by the applicant and that it assessed that evidence in paragraph 76 of the contested decision. 89      Lastly, whilst the applicant argues that the earlier mark plays a key role in the medical analysis sector, with more than 100 000 patients visiting Biogroup laboratories in Europe every day, particularly in France, Belgium, Luxembourg, Spain and Portugal, which together account for 25% of the market within the European Union, it must be stated that that information is derived solely from extracts from its own website and is not supported by any other evidence, as the Board of Appeal found in paragraph 76 of the contested decision and as the applicant confirmed in response to a question from the Court. 90      In the second place, as regards the articles about Biogroup laboratories, these consist, first, of a news report announcing the death of the group’s founder, which includes information on the number of employees and the number of laboratories within the group, without indicating the source, and, secondly, of a bibliography compiling the scientific articles and posters that the group’s biologists have produced for specialist journals or presented at scientific conferences. 91      Having regard to the case-law referred to in paragraph 82 above, it must be stated that, whilst the evidence submitted does establish use of the earlier mark for the services at issue, it does not call into question the Board of Appeal’s finding that it was not sufficient to demonstrate that the earlier rights were particularly distinctive by virtue of intensive use or reputation, and does not demonstrate an error of assessment on the part of the Board of Appeal in that regard, with respect to the public’s recognition of that mark. 92      In the third place, as regards the judgment of 18 January 2023, YOGA ALLIANCE INDIA INTERNATIONAL (T‑443/21, not published, EU:T:2023:7), to which the Board of Appeal refers in paragraph 81 of the contested decision, it must be stated that, in that case, the Court endorsed the Board of Appeal’s finding that, first, the ability of the word elements of the earlier mark to dominate the overall impression created in the mind of the consumer was limited, on account of their weak distinctive character, and, secondly, in view of the minimal distinctiveness of the earlier mark considered as a whole, the scope of the protection of that mark was also limited (see paragraph 111 of that judgment). 93      In accordance with the case-law, it is necessary to distinguish between the notion of the distinctive character of the earlier mark, which determines the protection afforded to that mark, and the notion of the distinctive character which an element of a composite mark possesses, which determines its ability to dominate the overall impression created by the mark (see judgment of 18 January 2023, YOGA ALLIANCE INDIA INTERNATIONAL, T‑443/21, not published, EU:T:2023:7, paragraph 109 and the case-law cited). 94      In the present case, although the Board of Appeal should have found, as stated in paragraph 54 above, that the word element ‘biogroup’ dominated the other elements present in the marks at issue, in so far as, in principle, the average consumer will more easily refer to the goods at issue by citing the name than by describing the figurative element of those marks, it must be recalled that it did not err in finding that the word element ‘biogroup’ had weak distinctive character, as is apparent from paragraph 40 above. 95      Having regard to the case-law referred to in paragraph 93 above and to the evidence produced, which the Board of Appeal found, correctly, not to enable the applicant to claim broader protection for the earlier mark on the basis of the public’s recognition of that mark, it must be held that the Board of Appeal also did not err in finding, in paragraph 81 of the contested decision, that the earlier mark had weak distinctive character, corresponding to its intrinsic distinctiveness. 96      Accordingly, the applicant is not justified in criticising the Board of Appeal for referring to the judgment of 18 January 2023, YOGA ALLIANCE INDIA INTERNATIONAL (T‑443/21, not published, EU:T:2023:7). 97      The third part of the first plea must therefore be rejected. The fourth part of the first plea, relating to the global assessment of the likelihood of confusion 98      According to settled case-law, 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 appreciated 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). 99      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 the similarity of the goods or services concerned. Accordingly, a lesser degree of similarity between those goods or services may be offset by a greater 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 – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74). 100    In the present case, in paragraphs 84 and 85 of the contested decision, the Board of Appeal took into account the fact that the services were presumed to be identical, that they were aimed predominantly at professionals with a relatively high level of attention, that the marks displayed, at most, a below-average degree of visual and phonetic similarity and a low degree of conceptual similarity, that the similarity between the signs stemmed from the fact that they coincided in the expressions ‘biogroup’ or ‘bio-group’, which were, at most, weakly distinctive, and that the signs at issue differed in their overall layout as well as in their stylisation, colours and figurative elements. In paragraphs 91 and 92 of that decision, it concluded that the relevant public was not likely to believe that the marks at issue originated from the same undertaking or from economically linked undertakings, and that it would safely distinguish between the marks, recognising their visual differences, with the consequence that, even for identical services, there was no likelihood of confusion between the marks at issue within the meaning of Article 8(1)(b) of Regulation 2017/1001. 101    The applicant submits that, as a result of the errors made by the Board of Appeal in its assessment of the relevant public, the distinctive character of the element ‘biogroup’ or ‘bio-group’, the dominant nature of that element in the signs at issue, the visual, phonetic and conceptual similarity of those signs, and the distinctive character possessed by the earlier mark by virtue of its extensive use and reputation, the Board of Appeal infringed Regulation 2017/1001 in its global assessment of the likelihood of confusion. It also submits that the Board of Appeal should have found that there was a likelihood of association in the mind of the relevant public. In that regard, the applicant states that the Board did not explain why the identity, or at least the very strong similarity, of the goods and services at issue could not compensate for what was considered to be a lower degree of similarity between the signs. It therefore clearly failed to take into account the interdependence between the relevant factors in assessing the overall likelihood of confusion, in circumstances where the average consumer normally perceives a mark as a whole and does not proceed to examine its various details. 102    EUIPO disputes the applicant’s arguments. 103    In that regard, it is apparent from paragraphs 63, 69 and 79 above that the signs at issue should have been found to have an average degree of visual similarity, at least an average degree of phonetic similarity and a low degree of conceptual similarity. 104    It must be stated that the Board of Appeal’s global assessment of the likelihood of confusion is based on the erroneous finding that the marks at issue exhibited, at most, a below-average degree of visual and phonetic similarity, such that that global assessment is itself erroneous, having regard to the case-law cited in paragraph 99 above. 105    It must therefore be held that, in so far as the Board of Appeal was treating the services covered by the marks at issue as identical, it could not, without committing an error, conclude in paragraph 92 of the contested decision that there was no likelihood of confusion. 106    Accordingly, the fourth part of the first plea must be upheld. 107    It follows from all of the foregoing that the first plea must be upheld as regards its second and fourth parts, and consequently that the contested decision must be annulled, without the need to examine the second plea. Costs 108    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 109    Since EUIPO has been unsuccessful and the applicant has applied for costs, EUIPO must be ordered to pay the costs. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1.      Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 14 March 2025 (Case R 877/2024-5); 2.      Orders EUIPO to pay the costs. Kecsmár Nihoul Öberg Delivered in open court in Luxembourg on 8 July 2026. V. Di Bucci M. van der Woude Registrar President *      Language of the case: English.