T-591/24

JUDGMENT OF THE GENERAL COURT (First Chamber) 1 July 2026 (*) ( EU trade mark – Opposition proceedings – Application for EU word mark ARYUNA – Earlier Benelux and national word marks ARMUNIA – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 – Evidence submitted for the first time before the Court ) In Case T‑591/24, Sandoz AG, established in Basel (Switzerland), represented by A. Nordemann, acting as lawyer, applicant, supported by Marques, established in Leicester (United Kingdom), represented by S. Fischoeder, J. Słupski and M. Viefhues, lawyers, intervener, v European Union Intellectual Property Office (EUIPO), represented by A. Ringelhann and V. Ruzek, acting as Agents, defendant, the other party to the proceedings before the Board of Appeal of EUIPO being Be Healthy d.o.o., established in Kranj (Slovenia), THE GENERAL COURT (First Chamber), composed of E. Buttigieg (Rapporteur), President, J. Schwarcz and F. Bestagno, Judges, Registrar: G. Mitrev, Administrator, having regard to the written part of the procedure, further to the hearing on 3 March 2026, gives the following Judgment 1        By its action under Article 263 TFEU, the applicant, Sandoz AG, seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 September 2024 (Case R 2531/2023-5) (‘the contested decision’).  Background to the dispute 2        On 30 September 2022, the other party to the proceedings before the Board of Appeal of EUIPO, Be Healthy d.o.o., filed an application for registration of an EU trade mark with EUIPO in respect of the word sign ARYUNA. 3        The mark applied for covers goods in Class 5 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: ‘Tincture of iodine; tinctures for medical purposes; medicinal herbs; herbal medicine; decoctions of medicinal herb’. 4        On 12 January 2023, Novartis AG, the predecessor in title of the applicant, 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 following earlier rights: –        the Benelux word mark ARMUNIA, registered on 12 March 2012 under No 912 080, covering goods in Class 5 and corresponding to the following description: ‘Pharmaceutical preparations, namely oral contraceptives’; –        the Austrian word mark ARMUNIA, registered on 3 February 2014 under No 276 600, covering goods in Class 5 and corresponding to the following description: ‘Pharmaceutical preparations for human use’. 6        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1). 7        On 7 December 2023, the Opposition Division rejected the opposition on the ground that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001. 8        On 28 December 2023, Novartis filed a notice of appeal with EUIPO against that decision. 9        After the filing of the appeal, Novartis transferred the two earlier marks, on which the opposition was based, to the applicant. 10      By the contested decision, the Board of Appeal dismissed the appeal. It found, in essence, that, even for identical goods, taking into account the high level of attention of the relevant public and the fact that the marks at issue had a low degree of visual and phonetic similarity, and since the earlier marks had a normal degree of distinctiveness, it was necessary to conclude that there was no likelihood of confusion.  Forms of order sought 11      The applicant claims that the Court should: –        annul the contested decision; –        order EUIPO to pay the costs. 12      EUIPO contends that the Court should: –        dismiss the application; –        order the applicant to pay the costs in the event that an oral hearing is convened. 13      Marques contends that the Court should: –        annul the contested decision; –        order it to bear its own costs.  Law  Admissibility of evidence submitted for the first time before the General Court 14      EUIPO submits, in essence, that the evidence in Annexes A.6 to A.16 to the application was introduced for the first time during the proceedings before the General Court and that it is therefore inadmissible. 15      According to settled case-law, the purpose of actions before the General Court under Article 72(2) of Regulation 2017/1001 is to obtain a review of the legality of decisions of the Boards of Appeal, which must be carried out, pursuant to Article 95 of that regulation, in the light of the factual and legal context of the dispute as it was brought before the Board of Appeal (see judgment of 1 February 2005, SPAG v OHIM – Dann and Backer (HOOLIGAN), T‑57/03, EU:T:2005:29, paragraph 17 and the case-law cited). It follows that the General Court may not annul or alter a decision against which an action has been brought on grounds which come into existence subsequent to its adoption (judgments of 11 May 2006, Sunrider v OHIM, C‑416/04 P, EU:C:2006:310, paragraph 55, and of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 53). 16      Therefore, it is not the Court’s function to review the facts in the light of documents adduced for the first time before it. To allow the examination of such evidence would be contrary to Article 188 of the Rules of Procedure of the General Court, according to which the parties’ submissions may not alter the subject matter of the proceedings before the Board of Appeal. Accordingly, the evidence submitted for the first time before the Court must be declared inadmissible and there is no need to examine it (see judgment of 14 May 2009, Fiorucci v OHIM – Edwin (ELIO FIORUCCI), T‑165/06, EU:T:2009:157, paragraph 22 and the case-law cited). 17      It is apparent from EUIPO’s file that the evidence in Annexes A.6 to A.16 to the application was not introduced during the administrative procedure before EUIPO, and that it was therefore submitted for the first time before the General Court, a fact which, moreover, the applicant acknowledged at the hearing. 18      Thus, in accordance with the case-law cited in paragraph 16 above, those annexes must be declared inadmissible, and there is no need to examine them. 19      That conclusion cannot be called into question by the applicant’s argument, put forward at the hearing, that the evidence in those annexes is not ‘strictly evidence’, rather it is contextual material. 20      It is true that it is apparent from settled case-law that a party is entitled to produce, for the first time before the Court, documents that are not strictly evidence but rather draw on EU, national or international case-law, or on proceedings before EUIPO and national and international bodies (see, to that effect, judgments of 14 March 2018, Crocs v EUIPO – Gifi Diffusion (Footwear), T‑651/16, not published, EU:T:2018:137, paragraph 17 and the case-law cited, and of 22 September 2021, Moviescreens Rental v EUIPO – the airscreen company (AIRSCREEN), T‑250/20, not published, EU:T:2021:602, paragraph 20 and the case-law cited). 21      However, in the present case, the new evidence produced by the applicant consists of a press release (Annex A.6), reports (Annexes A.7, A.12, A.13 and A.16), a press article (Annex A.8), extracts from websites (Annexes A.9 and A.10), a list of pharmaceutical products (Annex A.11) and studies (Annexes A.14 and A.15). That evidence aims, moreover, to show that numerous errors are made, during the administration of pharmaceutical products by health professionals or during the taking of such products by patients, and that, consequently, the level of attention of the relevant public is at most average and that patient safety must be taken into account in the global assessment of the likelihood of confusion. 22      Accordingly, it must be held that the case-law cited in paragraph 20 above, which accepts the possibility of evidence that draws on EU, national or international case-law, or on proceedings before EUIPO and national and international bodies, being produced for the first time before the Court, is not applicable to the abovementioned evidence and that, consequently, that evidence must be rejected as inadmissible.  Substance 23      In support of its action, the applicant, supported by Marques, relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. The applicant submits that the Board of Appeal committed errors, first, in its assessment of the level of attention of the relevant public and, secondly, in its global assessment of the likelihood of confusion. 24      EUIPO disputes the applicant’s arguments. 25      Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark. 26      The risk that the public might believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 32 and the case-law cited). 27      For the purpose of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the two marks 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).  The relevant public and territory 28      In the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited). 29      ‘Average consumer’ cannot be understood as only the consumer who is part of the ‘general public’, but the consumer who is part of the public at which the goods and services in question are typically aimed. Thus, the ‘average consumer’ may be a professional, if the goods and services in question are typically aimed at such a public (see judgment of 4 December 2024, Jula v EUIPO – Mula (Mula), T‑22/24, not published, EU:T:2024:875, paragraph 23 and the case-law cited). 30      Where the goods covered by the two marks at issue are intended for the same relevant public, which comprises both the general public and professionals, the public with the lowest level of attention must be taken into consideration (see judgment of 4 December 2024, Mula, T‑22/24, not published, EU:T:2024:875, paragraph 24 and the case-law cited). 31      The Board of Appeal found that the relevant public was composed of both the general public and medical and pharmaceutical professionals. It also found that the level of attention of professionals was high and that of the general public was relatively high with respect to all the goods at issue, even those that could be purchased without a prescription, since those products affect their health. 32      The Board of Appeal also recalled that, where the relevant public was composed of consumer groups with different levels of attention, it was necessary, for the purposes of assessing the likelihood of confusion, to take into account the public with the lowest level of attention, that is to say, in the present case, the general public. 33      Lastly, the Board of Appeal found that, since the earlier marks were protected in Benelux and Austria, respectively, those were the relevant territories for the assessment of a likelihood of confusion. 34      The applicant does not dispute the Board of Appeal’s assessment as regards the relevant territories for the assessment of a likelihood of confusion or its assessment that the relevant public for the goods at issue is composed of both the general public and medical and pharmaceutical professionals. 35      By contrast, the applicant disputes the Board of Appeal’s assessment of the level of attention of the relevant public. 36      In that connection, the applicant submits, in essence, that the approach, taken by the Board of Appeal in the contested decision, of assuming a consistently high level of attention among consumers in the medical field is incorrect, as it fails to take into account the fact that, in numerous everyday situations, it is likely that the level of attention of the relevant public to the goods at issue is rather low. In practice, patients and even caregivers confuse medications covered by similar marks, particularly under stress or suffering, or in emergency situations. That approach thus creates an unacceptable risk to patient safety. It is therefore necessary, according to the applicant, to re-examine the case-law according to which the average consumer adopts a heightened level of attention to pharmaceutical products, given their impact on health. It concludes that the level of attention of the relevant public, whether it be the general public or health professionals, must be considered to be at most average. 37      EUIPO disputes the applicant’s arguments. 38      It should be recalled that, in the present case, all the goods at issue are in Class 5. The goods covered by the earlier Benelux mark are pharmaceutical preparations, namely oral contraceptives, and those covered by the earlier Austrian mark are pharmaceutical products for human use. The goods covered by the mark applied for are tincture of iodine, tinctures for medical purposes, medicinal herbs, herbal medicine and decoctions of medicinal herb. 39      As regards pharmaceutical preparations for human use and pharmaceutical preparations, namely oral contraceptives, it should be noted, as the Board of Appeal noted, that it follows from settled case-law, first, that medical professionals have a high level of attention when prescribing medicines. Secondly, with regard to end consumers, it is apparent from the case-law that, in cases where pharmaceutical products are sold without a prescription, it must be assumed that those goods will be of concern to consumers who are deemed to be reasonably well informed, observant and circumspect, since those goods affect their state of health, and that those consumers are less likely to confuse different versions of such goods. Furthermore, even assuming that a medical prescription is mandatory, consumers are likely to have a high level of attention when the goods at issue are prescribed, in the light of the fact that those goods are pharmaceutical products. Thus medicines, whether or not issued on prescription, can be regarded as receiving a heightened level of attention on the part of consumers who are reasonably well informed and reasonably observant and circumspect (see judgment of 11 October 2023, Pascoe pharmazeutische Präparate v EUIPO – Novartis Pharma (PASCELMO), T‑435/22, not published, EU:T:2023:610, paragraph 34 and the case-law cited). 40      That finding applies even where pharmaceutical preparations are available to consumers over the counter, since those goods relate to their health (see judgment of 11 October 2023, PASCELMO, T‑435/22, not published, EU:T:2023:610, paragraph 35 and the case-law cited). 41      That finding also applies to tinctures, medicinal herbs, herbal medicine and decoctions of medicinal herb, which strictly speaking are not medicines, but nevertheless constitute goods in the field of health, since in general they are intended to improve health, which may be regarded as products to which consumers, who are reasonably well informed and reasonably observant and circumspect, pay a high level of attention (see, to that effect, judgments of 5 April 2006, Madaus v OHIM–Optima Healthcare (ECHINAID), T‑202/04, EU:T:2006:106, paragraph 33, and of 20 September 2018, Kwizda Holding v EUIPO – Dermapharm (UROAKUT), T‑266/17, EU:T:2018:569, paragraph 28 and the case-law cited). 42      It follows that the Board of Appeal did not commit an error of assessment by finding that the level of attention of medical and pharmaceutical professionals was high and that the level of attention of the general public was relatively high as regards all the goods at issue. 43      It also follows that, in the light of the case-law cited in paragraph 30 above, the Board of Appeal did not commit an error of assessment by finding that, in the present case, it was necessary to take into consideration, for the purpose of the global assessment of the likelihood of confusion, the general public with a relatively high level of attention. 44      Those findings are not invalidated by the applicant’s argument, in essence, that the general public and health professionals have a lower level of attention in certain circumstances and confuse medicines bearing similar marks. 45      First, whatever the goods and marks at issue, there will always be situations in which the public faced with them will grant them only a lower degree of attention. To require that account be taken of the lowest degree of attention which the public is capable of displaying when faced with a product and a mark would amount to denying all relevance, for the purpose of an assessment of the likelihood of confusion, to the criterion relating to the variable degree of attention according to the category of goods, as recalled in paragraph 28 above (see, to that effect, judgments of 12 January 2006, Ruiz-Picasso and Others v OHIM, C‑361/04 P, EU:C:2006:25, paragraph 42; of 12 September 2012, Ertmer v OHIM – Caterpillar (erkat), T‑566/10, not published, EU:T:2012:419, paragraph 48 and the case-law cited; and of 13 May 2015, Ferring v OHIM – Kora (Koragel), T‑169/14, not published, EU:T:2015:280, paragraph 34 and the case-law cited). 46      Secondly, the authority called upon to assess whether there is a likelihood of confusion cannot reasonably be required to establish, for each category of goods, the consumer’s average amount of attention on the basis of the level of attention which he or she is capable of displaying in different situations (judgment of 12 January 2006, Ruiz-Picasso and Others v OHIM, C‑361/04 P, EU:C:2006:25, paragraph 43).  The comparison of the goods 47      The Board of Appeal found that the goods covered by the mark applied for were identical to the pharmaceutical products for human use covered by the earlier Austrian mark and similar to a below-average degree to the pharmaceutical preparations covered by the earlier Benelux mark. 48      The applicant and the intervener do not dispute that assessment by the Board of Appeal. 49      It is true that in paragraph 35 of the application, in the context of its line of argument relating to the likelihood of confusion, the applicant, by listing the factors relevant to the analysis of that risk, emphasised inter alia that the goods at issue were identical because they were all pharmaceutical preparations. 50      That said, that statement should not be interpreted as seeking to call into question the Board of Appeal’s assessment that the goods covered by the mark applied for were similar to a below-average degree to the goods covered by the earlier Benelux mark on the ground that those goods are in fact identical. As the applicant confirmed at the hearing, that affirmation concerns only the goods covered by the mark applied for and those covered by the earlier Austrian mark, which the Board of Appal found to be identical.  The comparison of the signs 51      The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must 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 appreciation of that likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse 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). 52      As a preliminary point, the Board of Appeal noted that the marks at issue were word marks and that the earlier marks both consisted of the word element ‘armunia’ and the mark applied for consisted of the word element ‘aryuna’. 53      The Board of Appeal found that neither the earlier marks nor the mark applied for had an apparent meaning for the relevant public and that they should therefore be regarded as distinctive. It also found that those marks did not have a dominant element. 54      As regards the visual comparison of the signs at issue, the Board of Appeal found, in essence, that, even though those signs presented visual similarities because they both consisted of a word element of similar length and they had the beginning and ending letters in common, the middle parts of those signs constituted notable differences. The Board of Appeal concluded that the signs at issue were visually similar to a low degree. 55      As regards the phonetic comparison of the signs at issue, the Board of Appeal found, in essence, that, even though the signs at issue had the sound of the beginning letters ‘a’ and ‘r’ and ending letter ‘a’ in common, and also shared the sounds of ‘u’, ‘y’, ‘i’ and ‘n’, they were constituted by different syllables and differed in the pronunciation of their middle parts. It concluded that the signs at issue were phonetically similar to a low degree. 56      As regards the conceptual comparison of the signs at issue, the Board of Appeal indicated that, since those signs had no specific meaning for the Benelux and Austrian public, a conceptual comparison of the signs was not possible. 57      The applicant and the intervener do not dispute that Board of Appeal’s assessment in paragraph 56 above relating to the conceptual comparison of the signs at issue. 58      The applicant states that the marks at issue have five letters in common, in the same order, namely the letters ‘a’, ‘r’, ‘u’, ‘n’ and ‘a’ and are therefore similar. It claims that the Board of Appeal should have concluded that the signs at issue were sufficiently similar to give rise to a likelihood of confusion. 59      The intervener submits that, given that the marks at issue share the same letter sequence ‘ar-un-a’ and a letter pronounced like ‘i’, namely ‘i’ and ‘y’, the Board of Appeal should have considered that the imperfect recollection of the earlier mark could easily lead to it being remembered as ‘arimuna’, which can easily be confused with the mark applied for. It is apparent from the hearing that, by that line of argument, the intervener seeks to challenge the Board of Appeal’s finding that the signs at issue are visually and phonetically similar to a low degree. 60      EUIPO disputes the applicant’s arguments. 61      As regards the visual similarity of the signs at issue, while it is true that those signs have five letters in common, placed in the same order, namely the letters ‘a’, ‘r’, ‘u’, ‘n’ and ‘a’, they differ in the presence of the letters ‘m’ and ‘i’ in the earlier marks, and in the presence of the letter ‘y’ in the mark applied for. Furthermore, as the Board of Appeal, in essence, noted, the difference between the letters ‘m’ and ‘y’, situated in the middle of the signs at issue, is particularly striking. It should, moreover, be noted that, in respect of word marks which are relatively short, such as those at issue in the present case, the central elements are as important as the elements at the beginning and end of the sign (see, to that effect, judgment of 11 October 2023, PASCELMO, T‑435/22, not published, EU:T:2023:610, paragraph 46 and the case-law cited). 62      Accordingly, the Board of Appeal did not commit an error of assessment by concluding that the signs at issue were visually similar to a low degree. 63      As regards the phonetic similarity of the signs at issue, the earlier marks will be pronounced in four syllables, namely ‘ar’, ‘mu’, ‘ni’ and ‘a’. The mark applied for will also be pronounced in four syllables, namely ‘a’, ‘ry’, ‘u’ and ‘na’. Even though the signs at issue have the same number of syllables and have the sound of the beginning letters ‘a’ and ‘r’ and ending letter ‘a’ in common, and also share the sounds of ‘u’, ‘y’, ‘i’ and ‘n’, none of their syllables are identical, which causes differences in rhythm and intonation in the pronunciation of those signs, as the Board of Appeal, in essence, noted. Furthermore, as the Board of Appeal also stated, differences in the middle of the signs are readily perceptible when spoken (see, to that effect, judgment of 15 November 2018, Haufe-Lexware v EUIPO – Le Shi Holdings (Beijing) (Leshare), T‑546/17, not published, EU:T:2018:782, paragraph 54). 64      Accordingly, the Board of Appeal did not commit an error of assessment by concluding that the signs at issue were phonetically similar to a low degree. 65      The assessments in paragraphs 62 and 64 above are not called into question by the intervener’s other arguments put forward at the hearing. 66      First, as regards the intervener’s argument that the Board of Appeal focused on the internal differences of the signs at issue because it took into account a high level of attention of the relevant public, it is sufficient to note that, contrary to what the applicant argues, the Board of Appeal did not take into account the level of attention of the relevant public at the stage of its assessment of the similarity of the signs at issue. 67      Secondly, as regards the intervener’s argument that the Board of Appeal failed to take into account the fact that the signs at issue shared the same vowel sequence, which should have led it to find that that those signs were, overall, similar, as is apparent from German case-law, it is sufficient to note that the Board of Appeal took into account the fact that the signs at issue showed the same letter sequence, and therefore necessarily shared the same vowel sequence, and that that is the reason why it concluded that the signs were visually and phonetically similar to a low degree and not that they were different.  The distinctiveness of the earlier marks 68      The Board of Appeal found that, since the earlier marks did not have an apparent meaning for the relevant public, their inherent distinctiveness was normal. 69      The applicant and the intervener do not dispute that assessment by the Board of Appeal.  The likelihood of confusion 70      According to settled case-law of the Court of Justice, the existence of a likelihood of confusion depends on numerous elements, in particular the recognition of the trade mark on the market, the association which can be made with the used or registered sign, and the degree of similarity between the trade mark and the sign and between the goods or services identified. The likelihood of confusion must therefore be 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). 71      The 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). 72      The Board of Appeal noted that, even though the signs at issue had several letters in common, that was not sufficient to justify the finding of an overall similarity, taking into account in particular that the public consisted of consumers who would pay a higher level of attention to the goods concerned, and this notwithstanding the fact that the average consumer rarely has the chance to make a direct comparison of the different marks, but must rely on the imperfect image of them that he or she has kept in his or her memory. 73      Consequently, the Board of Appeal considered that, even for identical goods, taking into account the low degree of visual and phonetic similarity, the normal degree of distinctiveness of the earlier marks and the higher level of attention of the relevant public, it was necessary to conclude that that relevant public would not believe that the goods at issue come from the same undertaking or economically linked undertakings. 74      The Board of Appeal therefore found that there was no likelihood of confusion for the relevant public in Benelux and Austria. 75      The applicant, supported by the intervener, disputes that assessment by the Board of Appeal. 76      The applicant and the intervener criticise, in essence, the Board of Appeal for failing to take into account, or to sufficiently take into account, in the context of its global assessment of the likelihood of confusion, all factors relevant to the circumstances of the case. 77      In the first place, according to the applicant, the Board of Appeal should have taken situations of post-sale confusion between medicines and patient safety into account. 78      First, the applicant submits that it is apparent from the judgment of 12 November 2002, Arsenal Football Club (C‑206/01, EU:C:2002:651, paragraph 57), that account should be taken, in the assessment of the likelihood of confusion, of situations of post-sale confusion. That approach is reaffirmed by the fact that Article 9(2) of Regulation 2017/1001 confers on the proprietor of the mark the right to prohibit certain acts, listed in paragraph 3 of that article, which clearly happen before or after the time of sale. That approach is also reaffirmed by the fact that the essential function of the mark, which is to guarantee the identity of origin of the goods to the consumer, spans through all communications of a mark, in advertising before the sale, at the time of the sale, and also after the sale when the consumer, for example, uses the product, sees it again in an advertisement, or when it is given to him or her by another person, for example a carer. 79      Secondly, the applicant submits that, even though a higher level of attention should be presumed at the moment of the sale of a pharmaceutical preparation, the patient safety aspect should be prioritised in the global assessment of the likelihood of confusion and outweigh that higher level of attention. According to the applicant and the intervener, the higher level of attention of the average consumer has only a limited impact in that assessment. They claim that it is apparent from recital 11 of Regulation 2017/1001 that the EU legislature established a hierarchy of the elements to be taken into account in the context of that assessment and that the level of attention of the relevant public is not among the determining factors. 80      In the second place, the applicant and the intervener submit that the Board of Appeal did not sufficiently take into account the fact that the consumer rarely has the chance to make a direct comparison of the different marks, but must rely on the imperfect image of them that he or she has kept in his or her memory. The intervener notes, in that connection, that pharmaceutical marks are, in general, invented, and therefore difficult to remember. 81      The applicant concludes that, since the goods at issue are identical and the marks at issue are similar, taking into account the patient safety aspect, and based on the abovementioned principle that the average consumer must, in essence, trust in the imperfect image of marks that he or she has kept in his or her memory, the Board of Appeal should have found that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001. 82      EUIPO disputes the arguments of the applicant and of the intervener. 83      In the present case, in the context of the global assessment of the likelihood of confusion, the relevant public with a relatively high level of attention should be taken into account (see paragraph 43 above). 84      Taking into account the low degree of visual and phonetic similarity of the marks at issue, the normal degree of distinctiveness of the earlier marks and the relatively high level of attention of the relevant public, the Board of Appeal did not commit an error of assessment by finding that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001, even for identical goods, and this notwithstanding the fact that the average consumer rarely has the chance to make a direct comparison of the different marks, but must rely on the imperfect image of them that he or she has kept in his or her memory. 85      It follows from the case-law that, if the relevant public only rarely has a chance to compare the various marks directly and must therefore rely on ‘an imperfect recollection of them’, a higher level of attention on the part of the relevant public can lead to the conclusion that it will not confuse the marks at issue despite the lack of any direct comparison between the various marks (see, to that effect, judgments of 6 April 2022, Biogena v EUIPO – Alter Farmacia (NUTRIFEM AGNUBALANCE), T‑370/21, not published, EU:T:2022:215, paragraph 108 and the case-law cited, and of 13 November 2024, Interapothek v EUIPO – Q4 Media (miababy), T‑1169/23, not published, EU:T:2024:814, paragraph 60 and the case-law cited). 86      The intervener’s arguments are not such as to call that case-law into question. The high level of attention means specifically that the consumer endeavours to more accurately remember the mark in question and to be more vigilant in situations in which there could be a likelihood of confusion. 87      The assessment in paragraph 84 above is not called into question either by the argument, raised by the applicant and the intervener, that, in essence, the level of attention of the average consumer will have a limited impact in the assessment of the likelihood of confusion. 88      Recital 11 of Regulation 2017/1001, that the applicant and the intervener rely on in that connection, states that ‘the likelihood of confusion, the appreciation of which depends on numerous elements and, in particular, on the recognition of the trade mark on the market, the association which can be made with the used or registered sign, the degree of similarity between the trade mark and the sign and between the goods or services identified, should constitute the specific condition for such protection.’ It is true that the level of attention of the relevant public is not referred to in that recital. However, as EUIPO noted, the elements identified in that recital are not listed exhaustively, as is apparent from the use of the term ‘in particular’. Furthermore, that recital does not establish a hierarchy between the relevant elements. 89      Furthermore, it is apparent from the wording of Article 8(1)(b) of Regulation 2017/1001 that, to determine whether, upon opposition by the proprietor of an earlier mark, the mark applied for is not to be registered, it is necessary to assess whether there exists a likelihood of confusion on the part of the public in the territory in which the earlier mark is protected. To that end, the level of attention of that public should be taken into account. 90      The assessment in paragraph 84 above is not called into question either by the applicant’s argument that the Board of Appeal should have taken situations of post-sale confusion between medicines and patient safety into account. 91      In that connection, it should be recalled that, according to the case-law, the global assessment of the likelihood of confusion on the part of the relevant public must be carried out objectively and cannot be influenced by considerations not connected with the commercial origin of the product. It follows that the examination of the likelihood of confusion within the meaning of that provision must concern the likelihood of confusion as to the commercial origin of the goods and not the likelihood of confusion, relied on by the applicant, between those goods and, with regard in particular to the end consumers, to the risk that they take one medicinal product in the place of another. Thus, any harmful consequences connected with the incorrect use of a pharmaceutical preparation arise out of the possible confusion on the part of the health professional or the consumer as to the identity or characteristics of the good at issue and not as to its commercial origin in accordance with the ground for refusal set out in Article 8(1)(b) of Regulation 2017/1001 (see, to that effect, judgments of 5 April 2006, ECHINAID, T‑202/04, EU:T:2006:106, paragraphs 31 and 32; of 23 September 2009, GlaxoSmithkline and Others v OHIM – Serono Genetics Institute (FAMOXIN), T‑493/07, T‑26/08 and T‑27/08, not published, EU:T:2009:355, paragraph 72 and the case-law cited; and of 13 May 2016, Market Watch v EUIPO – El Corte Inglés (MITOCHRON), T‑62/15, not published, EU:T:2016:304, paragraph 24 and the case-law cited). 92      Lastly, it should be noted that, in paragraph 57 of the judgment of 12 November 2002, Arsenal Football Club (C‑206/01, EU:C:2002:651), relied on by the applicant in support of its line of argument that the Board of Appeal should have taken situations of post-sale confusion into account, the Court of Justice did not in any way express a general rule from which it could be inferred that, for the purposes of an assessment of the likelihood of confusion within the meaning of Article 5(1)(b) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) (which was the equivalent of Article 9(2) of Regulation 2017/1001) or Article 8(1)(b) of Regulation 2017/1001, there is no need to refer specifically to the particularly high level of attention displayed by consumers when purchasing a certain category of goods (see, to that effect, judgment of 12 January 2006, Ruiz-Picasso and Others v OHIM, C‑361/04 P, EU:C:2006:25, paragraph 47). 93      In the light of all the foregoing considerations, the single plea in law relied on by the applicant in support of its claims must be rejected and the action must therefore be dismissed in its entirety.  Costs 94      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 95      Since the applicant has been unsuccessful and a hearing has taken place, it must be ordered to bear its own costs and to pay those incurred by EUIPO, in accordance with the form of order sought by EUIPO. 96      In addition, under Article 138(3) of the Rules of Procedure, the General Court may order an intervener to bear its own costs. In the present case, Marques is to bear its own costs. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1.      Dismisses the action; 2.      Orders Sandoz AG to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO); 3.      Orders Marques to bear its own costs. Buttigieg Schwarcz Bestagno Delivered in open court in Luxembourg on 1 July 2026. V. Di Bucci   S. Papasavvas Registrar   President *      Language of the case: English.