T-683/24

ORDER OF THE GENERAL COURT (Eighth Chamber) 8 April 2026 (*) ( EU trade mark – Opposition proceedings – Application for the EU figurative mark hômity – Earlier EU figurative mark DOMITYS – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 – Action manifestly lacking any foundation in law ) In Case T‑683/24, Green Asset, SL, established in Las Rozas de Madrid (Spain), represented by Á. Díez Bajo, lawyer, applicant, v European Union Intellectual Property Office (EUIPO), represented by M. Eberl, acting as Agent, defendant, the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being Domitys SAS, established in Paris (France), represented by A. Berthet, lawyer, THE GENERAL COURT (Eighth Chamber), composed of I. Gâlea, President, M.J. Costeira and T. Tóth (Rapporteur), Judges, Registrar: V. Di Bucci, having regard to the written part of the procedure, makes the following Order 1        By its action under Article 263 TFEU, the applicant, Green Asset, SL, seeks the annulment and alteration of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 31 October 2024 (Case R 647/2024-4) (‘the contested decision’).  Background to the dispute 2        On 7 September 2021, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign: 3        The mark applied for covered, inter alia, services in Classes 36 and 37 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, for each of those classes, to the following description: –        Class 36: ‘Rental of apartments; Land acquisition services; Real estate acquisition services; Rental of real estate; Real estate management; Real estate and property management services; Real estate lease renewal services’; –        Class 37: ‘Laundering; Launderette facilities (Provision of -); Building repair; Interior refurbishment of buildings; Renovation of buildings; Renovation and restoration of buildings; Supervision of building renovation; Maintenance of buildings; Refurbishment of buildings’. 4        On 15 December 2021, the intervener, Domitys SAS, filed a notice of opposition to the registration of the mark applied for in respect of the services referred to in paragraph 3 above. 5        The opposition was based, inter alia, on the following earlier mark: 6        The services covered by the earlier mark were, in particular, in Classes 36 and 37 and corresponded, inter alia, for each of those classes, to the following description: –        Class 36: ‘Real estate affairs’; –        Class 37: ‘Building construction and maintenance; laundry’. 7        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). 8        On 23 January 2024, the Opposition Division upheld the opposition, finding that there was a likelihood of confusion in respect of the services referred to in paragraph 3 above. 9        On 25 March 2024, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision. 10      By the contested decision, the Board of Appeal dismissed the appeal on the ground that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.  Forms of order sought 11      The applicant claims that the Court should: –        annul and, if appropriate, alter the contested decision; –        order EUIPO and, if appropriate, the intervener to pay the costs. 12      EUIPO contends that the Court should: –        dismiss the action; –        order the applicant to pay the costs incurred in the event that an oral hearing is convened. 13      The intervener contends that the Court should: –        dismiss the action; –        order the applicant to pay the costs of the proceedings before the Court, in addition to the costs of the proceedings before the Opposition Division and the Board of Appeal of EUIPO.  Law 14      Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the General Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. 15      In the present case, the General Court considers that it has sufficient information from the material in the file and decides, pursuant to Article 126 of the Rules of Procedure, to rule without taking further steps in the proceedings, notwithstanding the request for an oral hearing made by the applicant. 16      In support of its action, the applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. In particular, it challenges the Board of Appeal’s findings in relation to the relevant public and the comparison of the services at issue and, consequently, the global assessment of the likelihood of confusion. 17      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. 18      The risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited). 19      For the purpose of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited). 20      It is in the light of those considerations that it is necessary to examine whether the Board of Appeal was correct to hold that there was a likelihood of confusion on the part of the relevant public, within the meaning of Article 8(1)(b) of Regulation 2017/1001.  The relevant public 21      The Board of Appeal found, in paragraph 17 of the contested decision, that the relevant public consisted of both the general public and business customers with specific professional knowledge or expertise, whose degree of attention varied from average to high. 22      The applicant complains that the Board of Appeal found that the relevant public for the services at issue was the same for the signs at issue. It submits that it is apparent from the parties’ websites that the services covered by the mark applied for are not services aimed at a public consisting of elderly persons targeted by the earlier mark. It refers, in that regard, to all the arguments and evidence that it submitted to the Board of Appeal in its statement of grounds. 23      EUIPO and the intervener dispute the applicant’s arguments. 24      As a preliminary point, as regards the reference made by the applicant to the arguments and evidence submitted to the Board of Appeal, it must be stated that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of Article 53 thereof and Article 177(1)(d) of the Rules of Procedure of the General Court, an application must contain a summary of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information (see, to that effect, judgment of 22 June 2017, Biogena Naturprodukte v EUIPO (ZUM wohl), T‑236/16, EU:T:2017:416, paragraph 11 and the case-law cited). According to well-established case-law, even though the body of the application may be supported and supplemented, with regard to specific points, by references to extracts of documents appended thereto, a general reference to other documents cannot compensate for the failure to set out the essential elements of the legal argument which must, under those provisions, appear in the application itself (see judgment of 16 November 2017, Nanogate v EUIPO (metals), T‑767/16, not published, EU:T:2017:809, paragraph 31 and the case-law cited). 25      Moreover, whilst the text of the application can be supported by references to specific passages in documents annexed to it, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, the annexes having a purely evidential and instrumental function. It follows that an application, in so far as it refers to written submissions lodged before EUIPO, is inadmissible to the extent that the general references in it cannot be linked to the pleas and arguments put forward in that application itself (see judgment of 22 June 2017, ZUM wohl, T‑236/16, EU:T:2017:416, paragraph 12 and the case-law cited). 26      However, it should be noted that the applicant does not at any time identify the specific points of its application that it wishes to supplement by those references. Nor does it specify the evidence that it submitted to EUIPO which, in its view, would be capable of supporting its assertions. The applicant therefore merely made a general reference to the administrative file, within the meaning of the case-law cited in paragraph 25 above. It follows that the general reference made by the applicant to the evidence that it submitted before EUIPO must be rejected as manifestly inadmissible (see, to that effect and by analogy, judgment of 11 July 2019, Hauzenberger v EUIPO (TurboPerformance), T‑349/18, not published, EU:T:2019:495, paragraph 12 and the case-law cited). 27      As regards the applicant’s line of argument that the services covered by the marks at issue are intended for different publics, it must be borne in mind that, according to settled case-law, 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 (see judgment of 24 May 2011, ancotel v OHIM – Acotel (ancotel.), T‑408/09, not published, EU:T:2011:241, paragraphs 38 and the case-law cited). 28      In addition, the relevant public must be defined on the basis of the list of goods and services as covered by the marks at issue and not on the basis of the commercial choices made by the proprietors of those marks (see, to that effect, judgment of 21 November 2019, K.A. Schmersal Holding v EUIPO – Tecnium (tec.nicum), T‑527/18, not published, EU:T:2019:798, paragraph 49). 29      Thus, even assuming that the intervener intended the services at issue covered by the earlier mark to be addressed to a public consisting of elderly persons – which differs from the intended public for the applicant’s services – that circumstance, as the Board of Appeal correctly stated, has no effect on the determination of the relevant public. That argument must therefore be rejected as ineffective.  The comparison of the services 30      The Board of Appeal found, in essence, that the services at issue were identical. In particular, as regards the services in Class 36, it concluded, in paragraph 23 of the contested decision, that the services covered by the mark applied for were all included in the broad category of services ‘real estate affairs’ covered by the earlier mark. As regards the services in Class 37, it concluded, in paragraph 24 of the contested decision, first, that the service ‘laundering’ was included identically in both lists of services covered by the signs at issue and, second, that the service ‘launderette facilities (provision of-)’ covered by the mark applied for was included in the broad category of ‘laundry’ covered by the earlier mark. As regards the other services in Class 37 covered by the mark applied for, the Board of Appeal concluded, in paragraph 25 of the contested decision, that they were included in the broad category of services ‘building construction and maintenance’ covered by the earlier mark. 31      The applicant submits that the general designation of ‘real estate affairs’ services in Class 36 cannot be taken into account as it is too generic. In that regard, it is apparent from a comparison of the lists of services covered by the signs at issue that the services designated by the mark applied for in Class 36 do not appear among those covered by the earlier mark in Class 36. Consequently, the list of services covered by the earlier mark is sufficiently extensive and detailed to exclude the possibility that the intervener sought to cover the services covered by the mark applied for. Similarly, as regards the list of services in Class 37 covered by the earlier mark, the applicant claims that it is so broad that it can be presumed that the intervener did not wish to include the services covered by the mark applied for. 32      EUIPO and the intervener dispute the applicant’s arguments. 33      In that regard, it must be borne in mind that, in assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services should be taken into account (see judgment of 14 May 2013, Sanco v OHIM – Marsalman (Representation of a chicken), T‑249/11, EU:T:2013:238, paragraph 21 and the case-law cited). 34      It must be pointed out, as EUIPO rightly observed, that the applicant merely claims, first, that the category of services ‘real estate affairs’ in Class 36 is too generic and, second, that the list of services in Class 37 covered by the earlier mark is too broad to be able to include the services designated by the mark applied for. 35      In that regard, it is apparent from the case-law that services may be regarded as identical when the services covered by the trade mark application are included in a more general category covered by the earlier mark (see, to that effect, judgment of 11 October 2023, Flowbird v EUIPO – APCOA Parking Holdings (FLOWBIRD), T‑296/22, not published, EU:T:2023:613, paragraph 26 and the case-law cited). 36      As regards, in the first place, ‘real estate affairs’ services in Class 36, it must be stated that it has previously been held that ‘real estate services’, to which ‘real estate affairs’, in essence, correspond, are services connected with a property, namely, in particular, the lease, the purchase, the sale or the management of such a property (see judgment of 17 March 2021, Alvargonzález Ramos v EUIPO – Ursus-3 Capital, A.V. (URSUS Kapital), T‑114/20, not published, EU:T:2021:144, paragraphs 34 and 35 and the case-law cited). Those services correspond to the list of services in Class 36 covered by the mark applied for. 37      So far as concerns, in the second place, the services in Class 37 covered by the earlier mark, in view of their broad wording and in the absence of clarification as to their use, the Board of Appeal was entitled to find that they could include the services in Class 37 covered by the mark applied for. 38      Consequently, in the absence of specific arguments aimed at demonstrating the difference between the services covered by the marks at issue, there is no reason to call into question the Board of Appeal’s assessments regarding the comparison of the services at issue.  The comparison of the signs 39      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). 40      In the contested decision, the Board of Appeal found, without being challenged by the applicant, that the word elements of the signs at issue and the figurative elements of the earlier mark were distinctive and that the earlier mark did not contain any dominant element. Similarly, the applicant does not dispute the Board of Appeal’s findings that the signs at issue were phonetically similar to an above-average degree and the conceptual comparison remained neutral. 41      As regards the visual similarity, the Board of Appeal found that the signs at issue were, at the very least, visually similar to a below-average degree. In order to reach that conclusion, it found that the signs at issue consisted of an almost identical number of letters, that is six and seven, and coincided in the group of five letters ‘omity’. It found that the signs at issue differed in their initial consonants –‘d’ for the earlier mark and ‘h’ for the mark applied for – as well as in the circumflex accent over the letter ‘o’ of the mark applied for and in the last letter ‘s’ of the earlier mark. In addition, they differed also on account of the figurative elements of the earlier mark and in the stylisation of the word elements of the signs at issue, even though that latter aspect is rather perceived as decorative. 42      The applicant merely submits that the number of letters making up the signs at issue constitutes a weak ground irrelevant for establishing a similarity between those signs, since the relevant public will not stop to count the letters making up the marks at issue. 43      EUIPO and the intervener dispute the applicant’s arguments. 44      In that regard, it is sufficient to note that the applicant puts forward no specific argument capable of explaining why the number of letters is irrelevant in the present case in the assessment of the similarity of the signs at issue. Consequently, that part of the application does not meet the minimum requirements of Article 177(1)(d) of the Rules of Procedure as recalled in paragraph 24 above, with the result that that argument must therefore be rejected as manifestly inadmissible.  The likelihood of confusion 45      A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74). 46      The Board of Appeal found, in paragraphs 51 to 54 of the contested decision, that, taking into account, inter alia, the identity between the services at issue, the at least below-average degree of visual similarity and the above-average degree of phonetic similarity between the signs at issue and the fact that no comparison of the conceptual similarity could be carried out and that those signs share a group of five identical letters out of six and seven, the different figurative elements of those signs are not sufficient to offset any similarity and to rule out the existence of a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001. 47      The applicant does not dispute, in essence, that the signs at issue are similar. It maintains that, given that the marks at issue are not addressed to the same public, that the services at issue are different and that the signs at issue are insufficiently similar, there is no likelihood of confusion. 48      EUIPO and the intervener dispute the applicant’s arguments. 49      In that regard, it is apparent from paragraphs 49 to 54 of the contested decision that the Board of Appeal, in its global assessment of the likelihood of confusion, took into account all of the relevant factors, namely the distinctive character of the earlier mark, the services covered by the marks at issue, the relevant public and its level of attention and the degree of visual and phonetic similarity between the signs at issue. 50      In addition, as is set out in paragraphs 30 to 44 above, the applicant has not succeeded in calling into question the merits of the Board of Appeal’s findings that the services at issue are identical and that the signs at issue are visually similar to a below-average degree and phonetically similar to an above-average degree. 51      Consequently, it must be held that, following a global assessment and taking into account all of the factors referred to above, the applicant has not succeeded in calling into question the merits of the Board of Appeal’s global assessment concerning the existence of a likelihood of confusion. 52      In the light of all the foregoing, the action must be dismissed as manifestly lacking any foundation in law.  Costs 53      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. 54      Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by it. As regards the costs incurred by the intervener before EUIPO, it is sufficient to note that, since the present order dismisses the action brought against the contested decision, point 2 of the operative part of that decision continues to govern the costs incurred in the opposition proceedings and in the appeal proceedings before EUIPO (see judgment of 14 July 2021, Cole Haan v EUIPO – Samsøe & Samsøe Holding (Ø), T‑399/20, EU:T:2021:442, paragraph 64 and the case-law cited). 55      By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, in the absence of a hearing, be ordered to bear its own costs. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby orders: 1.      The action is dismissed as manifestly lacking any foundation in law. 2.      Green Asset, SL shall bear its own costs and pay those incurred by Domitys SAS. 3.      The European Union Intellectual Property Office (EUIPO) shall bear its own costs. Luxembourg, 8 April 2026. V. Di Bucci   I. Gâlea Registrar   President *      Language of the case: English.