2 July 2025 (*)

( EU trade mark – Opposition proceedings – International registration designating the European Union – Figurative mark C&M – Earlier EU word mark C&A – Relative ground for refusal – Likelihood of confusion – Visual and phonetic similarity – Article 8(1)(b) of Regulation (EU) 2017/1001 )

In Case T‑380/24,

Camilla and Marc Operations Pty Ltd,

established in Waterloo (Australia), represented by J. van Manen and A. Heemskerk, lawyers,

applicant,

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

C&A AG,

established in Baar (Switzerland), represented by K. Guridi Sedlak, lawyer,

THE GENERAL COURT (Third Chamber),

composed of P. Škvařilová‑Pelzl, President, I. Nõmm and R. Meyer (Rapporteur), Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

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

gives the following

1By its action under Article 263 TFEU, the applicant, Camilla and Marc Operations Pty Ltd, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 May 2024 (Case R 1667/2023-2) (‘the contested decision’).

Background to the dispute

2On 1 October 2020, the applicant designated the European Union in its international registration of the following figurative sign:

3The goods in respect of which protection of the international registration was sought are in Classes 18 and 25 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, and correspond, for Class 25, to the following description: ‘Clothing, footwear, headgear, belts (clothing)’.

4On 24 February 2021, the intervener, C&A AG, filed a notice of opposition pursuant to Article 46 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) to registration of the sign applied for.

5The opposition was based on the following earlier rights:

–the EU word mark C&A, registered on 24 November 2003 under No 2 840 940;

–the EU word mark C&A, registered on 17 May 1999 under No 105 882, for goods in Classes 18 and 25 corresponding, for each of those classes, to the following description:

–Class 18: ‘Leather and imitation leather; goods made from these materials, not included in other classes; trunks and travelling bags; umbrellas, parasols and walking sticks’;

–Class 25: ‘Clothing, footwear, headgear’.

6The grounds relied on in support of the opposition were those set out in Article 8(1)(b) and (5) of Regulation 2017/1001.

7Following the applicant’s request, EUIPO invited the opponent to furnish proof of genuine use of the marks relied on in support of the opposition.

8By decision of 8 June 2023, the Opposition Division found that only the EU word mark C&A, registered under No 105 882 (‘the earlier mark’), had been put to genuine use and only in respect of ‘clothing’. It rejected the opposition in its entirety.

9On 3 August 2023, the intervener filed a notice of appeal with EUIPO against that decision of the Opposition Division.

10By the contested decision, after stating that the scope of the appeal was limited to the assessment of the likelihood of confusion referred to in Article 8(1)(b) of Regulation 2017/1001, the Board of Appeal found that there was a likelihood of confusion in respect of the goods in Class 25 covered by the contested mark. Consequently, it upheld that appeal in part and annulled the decision of the Opposition Division in so far as it had rejected the opposition as regards the goods in Class 25.

Forms of order sought

11The applicant claims, in essence, that the Court should:

–annul the contested decision in part in so far as it concluded that there was a likelihood of confusion as regards the goods found to be identical with, or similar to, the clothing in Class 25;

–order EUIPO to pay the costs.

12EUIPO 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.

13The intervener contends, in essence, that the Court should:

–dismiss the action;

–order the applicant to pay the costs.

Law

14In support of the action, the applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. It complains, in essence, that the Board of Appeal failed to take into consideration all the relevant factors and characteristics specific to the case in order to assess whether there was a likelihood of confusion between the two signs at issue. It thus disputes that there is a visual and phonetic similarity between those two signs and criticises the Board of Appeal for finding that there was a likelihood of confusion as regards the goods found to be identical with, or similar to, the clothing in Class 25 without taking into account practices in the fashion industry. It also submits that the contested decision is tantamount to granting the intervener a de facto monopoly over the sign ‘C&’.

15Article 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.

16The 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).

17For the purposes 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).

18It is in the light of those considerations that it must be examined whether, as the applicant submits, the Board of Appeal infringed Article 8(1)(b) of Regulation 2017/1001, by finding that there could be a likelihood of confusion in the present case as regards the goods found to be identical with, or similar to, the clothing in Class 25.

19It should be noted as a preliminary point that it is not disputed in the present action, first, that use for the services in Class 35 (retail services for various goods) of EU trade mark No 2 840 940 has not been sufficiently established, or, second, that genuine use of EU trade mark No 105 882 has been proved for ‘clothing’, namely the clothing, headgear, footwear and belts in Class 25.

The relevant public

20The Board of Appeal found, first of all, that, since the opposition was based on an earlier EU trade mark, the relevant territory for the purpose of assessing the likelihood of confusion is that of the European Union.

21It then took the view that the goods in question were aimed at the general public, since they were ordinary consumer goods.

22Lastly, the Board of Appeal stated that the level of attention of the relevant public was average.

23Those assessments of the Board of Appeal, which are not, moreover, disputed by the applicant, must be upheld.

The comparison of the goods in question

24The Board of Appeal took the view that, first, the ‘clothing’ and the ‘belts (clothing)’ and, second, the ‘footwear’ and the ‘headgear’ covered by the mark applied for were, respectively, identical with and similar to, the ‘clothing’ covered by the earlier mark.

25The Board of Appeal also found that there was a difference between the goods ‘leather and imitations of leather; trunks and travelling bags; suitcases, umbrellas’ in Class 18 covered by the mark applied for and the ‘clothing’ in Class 25 covered by the earlier mark.

26Those assessments of the Board of Appeal, which are not, moreover, disputed by the applicant, must be upheld.

The comparison of the signs at issue

27Two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects, namely the visual, phonetic and conceptual aspects (judgment of 14 November 2018, Foodterapia v EUIPO – Sperlari (DIETOX), T‑486/17, not published, EU:T:2018:778, paragraph 36).

28In order to assess the degree of similarity between the marks concerned, it is therefore necessary to determine the degree of visual, phonetic and conceptual similarity between them (order of 27 April 2006, L’Oréal v OHIM, C‑235/05 P, not published, EU:C:2006:271, paragraph 40).

29Furthermore, 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).

30In the present case, the marks to be compared are the following:

Earlier mark

Contested sign

The dominant and distinctive elements of the signs at issue

31The Board of Appeal found that the two marks at issue consisted of the combination of two letters, linked by an ampersand, which did not convey any clearly perceptible meaning. It deduced that the word elements of the two signs at issue had an average degree of distinctiveness.

32The Board of Appeal also found that the stylisation of the figurative elements of the contested sign consisted solely of the use of a standard bold typeface which, therefore, did not influence the overall impression created by the sign.

33It concluded that the signs at issue did not contain any element which could be regarded as more dominant than others.

34Those assessments of the Board of Appeal, which are not, moreover, disputed by the applicant, must be upheld.

The similarity of the signs at issue

–The visual similarity of the signs at issue

35As a preliminary point, in so far as the mark applied for is a figurative mark and the earlier mark is a word mark, it should be borne in mind that, as regards the visual comparison, there is nothing to prevent a determination as to whether there is any visual similarity between a word mark and a figurative mark, since the two types of mark have graphic form capable of creating a visual impression (see judgment of 4 May 2005, Chum v OHIM – Star TV (STAR TV), T‑359/02, EU:T:2005:156, paragraph 43 and the case-law cited).

36In the present case, the Board of Appeal found, in paragraph 50 of the contested decision, a finding which the applicant does not dispute, that the signs coincided in their first two characters, but differed in their third character.

37The Board of Appeal first of all stated, in paragraph 51 of the contested decision, that the initial part of a mark normally has a greater impact than the final part, including in the case of short marks. It then found, in paragraph 52 of that decision, that, in the present case, although the signs are rather short, first, the similarities between those signs accounted for two thirds of their length and, second, the structure of the signs was identical. Lastly, it concluded that the difference in a single letter did not constitute a significant difference and did not give rise to a different overall visual impression, with the result that the signs were, at the very least, visually similar to an average degree.

38The applicant criticises paragraph 51 of the contested decision and submits that the rule that consumers tend to focus on the beginning of a sign does not apply when faced with a short sign. In such a case, the consumer would have no difficulty in perceiving the sign as a whole. According to the applicant, that is all the more true where the middle character is an ampersand, which indicates that the two letters are of equal importance.

39The applicant adds that the length of a sign influences the effect of similarity or dissimilarity between the signs. Accordingly, when faced with short signs, the relevant public is likely to perceive more clearly what differentiates them.

40EUIPO and the intervener dispute the applicant’s arguments.

41It must be borne in mind that the rule that greater attention is paid to the beginning of signs cannot apply in all cases and cannot call into question the general principle that the assessment of the similarity of marks must take account of the overall impression produced by those marks, since the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details. The Court must not take as its starting point the premiss that the consumer pays greater attention to the beginning of a word sign rather than to its end. It may hold that the end of signs which are the subject of opposition proceedings is more distinctive or dominant than the beginning of those signs or even that one of the elements in those signs is not more distinctive or dominant than the other (see judgment of 24 April 2024, Adeva v EUIPO – Sideme (MAISON CAVIST.), T‑313/23, not published, EU:T:2024:270, paragraph 69 and the case-law cited).

42It is true that the Board of Appeal stated, in paragraph 51 of the contested decision, that the initial part of a mark normally has a greater impact than the final part. However, that general statement is followed, in paragraph 52 of that decision, by a specific assessment of the visual similarity of the signs at issue, from which it follows that those signs are similar in two thirds of their length and that their structure is identical. The Board of Appeal concluded that the difference in a single letter did not constitute a significant difference and did not give rise to a different overall visual impression, with the result that the signs were, at the very least, visually similar to an average degree.

43Consequently, the Board of Appeal’s conclusion as regards the visual similarity of the signs at issue is not based solely on the fact that that similarity concerns the beginning of those signs, but on an overall assessment of the signs.

44First, it follows that the applicant’s argument is based on an incomplete reading of the contested decision. Second, the applicant does not dispute, as such, either the specific assessment of the visual similarity of the signs at issue or the Board of Appeal’s conclusion, which are set out in paragraph 52 of the contested decision. Therefore, that argument must be rejected as ineffective.

45In addition, as is stated by EUIPO, it is only where the differences between those signs can lead to different overall impressions that the similarity between them is appreciably reduced. That is not the case as regards the signs at issue, which are similar in two thirds of their length, the overall structure of which is identical and the standard stylisation of which does not influence the overall impression. Furthermore, even in the case of short signs, the presence, in each of the signs, of several letters in the same order is important in the overall assessment of their similarity (see, to that effect, judgment of 7 February 2024, Darila v EUIPO – Original Buff (Buffet), T‑101/23, not published, EU:T:2024:65, paragraphs 40 and 42 and the case-law cited).

46The Board of Appeal was therefore entitled to find that the difference in a single letter did not constitute a significant difference and did not give rise to a different overall visual impression, with the result that the signs at issue were, at the very least, visually similar to an average degree.

–The phonetic similarity of the signs at issue

47The Board of Appeal found, in paragraph 53 of the contested decision, that two thirds of each of the signs were pronounced identically, which the applicant does not dispute.

48It also stated, in paragraph 54 of that decision, that the phonetic similarity between the signs lay in the beginning of those signs, to which the relevant public generally pays more attention. It concludes that the similarity between the beginning of the signs had a significant impact on the overall phonetic impression, with the result that the signs at issue were, at the very least, phonetically similar to an average degree.

49The applicant’s arguments with regard to paragraph 54 of the contested decision are identical to those put forward against paragraph 51 of that decision and reference should therefore be made, in that regard, to paragraphs 38 and 39 of the present judgment.

50EUIPO and the intervener dispute the applicant’s arguments.

51As has been observed in paragraph 41 of the present judgment, the rule that greater attention is paid to the beginning of signs cannot apply in all cases and cannot call into question the general principle that the assessment of the similarity of marks must take account of the overall impression produced by those marks, since the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details.

52However, in the present case, it is not disputed that the signs at issue are similar in two thirds of their length. Furthermore, they have an identical structure consisting of three syllables, which results in a similarity of intonation and rhythm in the overall impression they produce.

53In addition, even in the case of short signs, the presence, in each of the signs, of several letters in the same order is important in the overall assessment of their similarity (see, by analogy, judgment of 7 February 2024, Buffet, T‑101/23, not published, EU:T:2024:65, paragraph 42 and the case-law cited).

54The Board of Appeal was therefore entitled to find that the signs at issue were, at the very least, phonetically similar to an average degree.

–The conceptual similarity of the signs at issue

55Taking the view that the two signs at issue have no meaning for the relevant public, the Board of Appeal found, in paragraph 55 of the contested decision, that the conceptual comparison did not influence the assessment of the similarity of those signs.

56Those assessments of the Board of Appeal, which are not, moreover, disputed by the applicant, must be upheld.

The distinctive character of the earlier mark

57It should be noted that, in paragraphs 58 to 60 of the contested decision, the Board of Appeal confirmed the Opposition Division’s analysis, which is not disputed by the parties, that the earlier mark had acquired a high degree of distinctiveness through its use on the market, in respect of the clothing in Class 25.

58The Board of Appeal concluded, in paragraphs 60 and 63 of the contested decision, that the earlier mark had a high degree of distinctiveness on account of a high degree of intensive use and reputation in the European Union as regards the clothing in Class 25. That assessment, which is not, moreover, disputed by the applicant, must be upheld.

The global assessment of the likelihood of confusion

59As a preliminary point, it must be borne in mind that 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 covered. Accordingly, a low degree of similarity between those goods may be offset by a high degree of similarity between the marks, and vice versa (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17).

60Furthermore, it must also be borne in mind that the more distinctive the earlier mark, the greater will be the likelihood of confusion. Marks with a highly distinctive character enjoy broader protection than marks with a less distinctive character (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 15 July 2020, Itinerant Show Room v EUIPO – Save the Duck (FAKE DUCK), T‑371/19, not published, EU:T:2020:339, paragraph 67).

61In the present case, it is apparent from the foregoing that the relevant public consists of the general public with an average level of attention, that the goods covered by the marks at issue are in part identical and in part similar, that the signs at issue are visually and phonetically similar to an average degree and that the conceptual aspect does not influence the assessment of their similarity.

62In addition, as stated by the Board of Appeal in paragraph 64 of the contested decision, the figurative elements of the contested sign are not capable of altering the overall impression of similarity between the signs, since those elements consist merely of a standard and, thus, non-distinctive typeface.

63Therefore, it must be concluded, as the Board of Appeal did, that, in the global assessment of the likelihood of confusion, the similarities between the signs at issue outweigh the existing differences, with the result that there is a likelihood of confusion on the part of the relevant public as regards the goods which have been found to be identical with, or similar to, the clothing in Class 25 covered by the earlier mark.

64That conclusion cannot be called into question by the arguments put forward by the applicant.

65In the first place, the applicant complains, in essence, that the Board of Appeal found, in paragraph 64 of the contested decision, that particular weight had to be given to the fact that two thirds of the signs were visually and phonetically similar and that that similarity existed in the beginning of the signs.

66It should be noted that that line of argument is no different from that put forward in relation to the visual and phonetic similarity of the signs at issue. In those circumstances, and in so far as that line of argument was rejected in the examination of the visual and phonetic similarity of the signs at issue, it must also be rejected as regards the global assessment of the likelihood of confusion.

67In the second place, first, the applicant submits that the use of two letters, which are the initials of two names, linked by an ampersand, is a well-established practice in the field of trade marks, particularly in the fashion industry. Therefore, since the letter following the ampersand is phonetically and visually different, consumers would understand that the signs at issue relate to different names, which would create a different overall impression.

68The applicant’s argument is based on the premiss that the consumer has a particular knowledge of the customs of the fashion industry as regards the name of trade marks. However, it does not dispute that the relevant public consists of the general public or that the level of attention of that public is average. The applicant cannot therefore rely on a use specific to the fashion industry which the relevant public would be used to and aware of.

69Moreover, as stated by EUIPO, the applicant has not substantiated its claims with evidence showing that the relevant public will necessarily associate two letters linked by an ampersand with the initials of the names of the founders of the mark or the designers of the clothing in question. The applicant merely produced a list of clothing trade marks composed of two letters linked by an ampersand, associated with the names corresponding to those initials, without it being possible to draw any inference from that list in respect of the present case.

70Second, the applicant submits that EUIPO took the view that no economic link between the two marks would be established by the relevant public, which the intervener did not dispute before the Board of Appeal. It infers from that fact, which must be regarded as established before the Court, that there is no likelihood of confusion, particularly as regards the goods ‘bags of all kinds; leather straps, wallets, purses, card cases and key cases’ in Class 18 in respect of which no proof of use has been furnished by C&A.

71As noted by EUIPO, the intervener’s appeal as regards the goods in Class 18 was dismissed, with the result that those goods are not relevant for the purposes of the present proceedings.

72Accordingly, that argument must be rejected as unfounded.

73In the third place, the applicant submits that the Board of Appeal’s reasoning is tantamount to granting, for all the goods concerned, a de facto monopoly over the element ‘C&’, especially since, in the fashion industry, it is common to use such sign structures.

74In paragraph 66 of the contested decision, the Board of Appeal clarified, in essence, that it was important to take due account of the high degree of distinctiveness enjoyed by the earlier mark in respect of the clothing in Class 25, that is to say, in respect of the goods found to be identical with, or similar to, the goods covered by the contested mark. It thus rightly highlighted the limited scope of protection conferred on the earlier mark.

75The Board of Appeal also added that it is for those very specific aspects of the present case that, contrary to what the applicant claims, the contested decision is not likely to grant the intervener an unfair monopoly over the element ‘C&’ of its mark. The Board of Appeal was therefore right in stating that the scope of the contested decision is limited to the likelihood of confusion between the marks ‘C&A’ and ‘C&M’ in relation to certain types of goods and that it is not tantamount to conferring de facto any right on the intervener in respect of the elements ‘C&’. The finding that there is a likelihood of confusion leads to the protection of only a certain combination of elements assessed in each specific case (see, to that effect, order of 22 October 2014, Repsol YPF v OHIM, C‑466/13 P, not published, EU:C:2014:2331, paragraph 84).

76Furthermore, as has been stated in paragraph 60 of the present judgment, the high degree of distinctiveness of the earlier mark, which is not disputed by the applicant, justifies enhanced protection of that mark against a likelihood of confusion.

77The Board of Appeal was therefore right to find that the contested decision was not likely to grant the intervener an unfair monopoly over the element ‘C&’.

78It follows that the applicant’s argument must be rejected as unfounded.

79In the fourth place, the applicant disputes, in essence, the application by analogy, in paragraph 68 of the contested decision, of an earlier decision of the Board of Appeal.

80In that regard, it must be observed that, in paragraph 68 of that decision, the Board of Appeal ‘note[d], en passant’ that its finding was in line with the decision of the Fourth Board of Appeal of 19 December 2018 (Case R 1252/2018 –4 concerning the signs C&J and C&A).

81It must be stated that, by proceeding in that way, the Board of Appeal complied with the obligation that, in the light of the principle of equal treatment and the principle of sound administration, EUIPO must, when examining an application for registration of an EU trade mark, take into account the decisions already taken in respect of similar applications and consider with especial care whether it should decide in the same way or not (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 73 and 74).

82Moreover, in so far as the applicant disputes the relevance of the decision to which the Board of Appeal referred, it is sufficient to note that it is apparent from the very wording of paragraph 68 of the contested decision that that ground is included for the sake of completeness. This is also borne out by the structure of the contested decision, since that paragraph follows the concluding paragraph by which the Board of Appeal found that there was a likelihood of confusion and took the view that the appeal was in part well founded and that the Opposition Division’s decision had to be in part annulled.

83Even if a ground proves to be erroneous, that cannot justify the annulment of the measure in which it is set out if it is superfluous and if other grounds exist which are sufficient to justify the measure, with the result that complaints directed against such grounds are ineffective (see judgment of 5 June 2024, Hofstede Insights v EUIPO – Geert Hofstede (HOFSTEDE INSIGHTS), T‑429/23, not published, EU:T:2024:349, paragraph 23 and the case-law cited).

84That argument of the applicant must therefore be rejected as ineffective.

85It follows that the applicant’s single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001, must be rejected as unfounded and, consequently, the action must be dismissed.

Costs

86Under 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.

87Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the intervener, in accordance with the form of order sought by the intervener.

Since no hearing has taken place, EUIPO must bear its own costs, in accordance with the form of order sought by it.

On those grounds,

hereby:

Dismisses the action;

Orders Camilla and Marc Operations Pty Ltd to bear its own costs and to pay those incurred by C&A AG;

Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.

Škvařilová-Pelzl

Nõmm

Meyer

Delivered in open court in Luxembourg on 2 July 2025.

Registrar

President

—

Language of the case: English.