29 June 2023 (*)

(Action for annulment – EU trade mark – Opposition proceedings – Application for the EU word mark HERZO – Earlier EU figurative mark HERNO – 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‑719/22,

Puma SE,

established in Herzogenaurach (Germany), represented by M. Schunke and P. Trieb, lawyers,

applicant,

European Union Intellectual Property Office (EUIPO),

represented by J. Ivanauskas, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO being

Herno SpA,

established in Lesa (Italy),

THE GENERAL COURT (Sixth Chamber),

composed of M.J. Costeira, President, M. Kancheva and P. Zilgalvis (Rapporteur), Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

makes the following

By its action under Article 263 TFEU, the applicant, Puma SE, seeks the annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 July 2022 (Case R 297/2022-1) (‘the contested decision’).

Background to the dispute

On 11 February 2020, the applicant filed an application for registration of an EU trade mark with EUIPO pursuant to 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).

Registration as a mark was sought for the word sign HERZO.

The goods in respect of which registration was sought are in Classes 18, 25 and 28 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, inter alia, for each of those classes, to the following description:

–Class 18: ‘Bags; shopping bags; net bags for shopping; handbags; clutch bags; clutch purses; shoulder bags; belt bags; purses, pocket wallets, key cases; carrying bags, travelling bags, sports bags and sports pouches, included in this class, duffel bags, rucksacks, school bags, hip bags, toilet bags; trunks and travelling cases; umbrellas, parasols and walking sticks’;

–Class 25: ‘Clothing; headgear; footwear’;

–Class 28: ‘Gymnastic and sporting apparatus; gymnastic and sporting articles (included in this class); balls for games, golf balls; shinguards, knee, elbow and ankle pads for sports purposes; sporting gloves (included in this class); tennis rackets, cricket bats, golf clubs, hockey sticks, table tennis bats, badminton and squash rackets; bags for sporting articles adapted to the product they are intended to contain; adapted bags and coverings for tennis, badminton and squash rackets, table tennis and cricket bats; golf clubs and hockey sticks; roller skates, ice skates and in-line skates, tables and nets for table tennis’.

The trade mark application was published in European Union Trade Marks Bulletin No 61/2020 of 30 March 2020.

On 30 June 2020, Herno SpA, the other party to the proceedings before the Board of Appeal, filed a notice of opposition pursuant to Article 46 of Regulation 2017/1001 to registration of the mark applied for in respect of all the goods covered by that mark.

The opposition was based on, inter alia, the earlier EU figurative mark, as reproduced below, which was filed on 31 July 2014 and registered on 22 December 2014 under the number 13 132 477 and covers goods in, inter alia, Classes 18 and 25 corresponding, for each of those classes, to the following description:

–Class 18: ‘Casual bags; hand bags; travel garment covers; rucksacks; wallets; baggage; satchels; document holders made of leather and imitations of leather; small bags; trunks (luggage); leather; leather goods; leather and leather goods; imitations of animal skins, hides and leather, and goods made of these materials; parasols; parasols (sun umbrellas); umbrellas; walking sticks; harnesses and saddlery’;

–Class 25: ‘Clothing for gentlemen, ladies and children in general, including clothing in leather; shirts; chemisettes; skirts; skirt suits; jackets (clothing); pants (Am); trousers shorts; jumpers; undershirts; pajamas (am); stockings; vest tops; corsets; suspenders; pants (Am); brassieres; underwear; headgear; headscarves; ties; mackintoshes; topcoats; jackets; swimming costumes; sportsuits; wind resistant jackets; ski trousers; waist belts; pelisses; sashes for wear; gloves; dressing gowns; footwear in general, including slippers, shoes, sports shoes, boots and sandals’:

The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation 2017/1001.

By decision of 17 December 2021, the Opposition Division upheld the opposition in respect of the goods referred to in paragraph 4 above.

On 15 February 2022, the applicant filed a notice of appeal with EUIPO, on the basis of Articles 66 to 71 of Regulation 2017/1001, against the decision of the Opposition Division.

By the contested decision, the Board of Appeal dismissed the appeal. In essence, it found that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001, at least for the relevant Spanish public. In particular, the Board of Appeal found, first, that the relevant public consisted of the general public in the European Union, the level of attention of which was average, and based its assessment on the Spanish part of the public, secondly, that the goods at issue were in part identical and in part similar to different degrees, thirdly, that the signs at issue were visually and phonetically similar to a high degree and that it was impossible to compare them conceptually and, fourthly, that the earlier mark had a normal degree of distinctiveness for the Spanish public.

Forms of order sought

The applicant claims that the Court should:

–annul the contested decision;

–order EUIPO to pay the costs, including those incurred before the Board of Appeal.

EUIPO contends that the Court should:

–dismiss the action;

–order the applicant to pay the costs incurred by EUIPO in the event of a summons to attend a hearing.

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 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.

In the present case, the Court considers that it has sufficient information from the documents in the file and has decided, pursuant to that article, to give a decision without taking further steps in the proceedings, even though one of the parties has requested that a hearing be held (see order of 29 July 2022, Santos v EUIPO (Shape of a citrus press), T‑51/22, not published, EU:T:2022:490, paragraph 17 and the case-law cited).

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.

The applicant submits, in essence, that there is no likelihood of confusion in the present case. In particular, it disputes the Board of Appeal’s findings relating to the definition of the relevant public’s level of attention, the comparison of the goods and the comparison of the signs.

EUIPO disputes the applicant’s claims.

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.

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).

For 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).

It is in the light of the abovementioned principles that the present plea must be examined.

The relevant public and its level of attention

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).

The applicant submits that the Board of Appeal did not take into account the fact that the earlier mark is a luxury brand. It argues that, when purchasing expensive goods, the consumer ‘will generally exercise a higher degree of care’ and will purchase the goods only after careful consideration. It claims that the relevant public’s level of attention is therefore above average.

EUIPO disputes the applicant’s claims and, in that regard, submits that the description of the goods covered by the earlier mark does not contain any indication as to the price or quality of the goods covered. Consequently, it contends that the Board of Appeal was justified in finding that the general public’s level of attention would be average.

In the present case, the Board of Appeal endorsed the Opposition Division’s assessment that the goods at issue were aimed at the general public and that that public’s level of attention was average. Furthermore, the Board of Appeal decided to focus on the Spanish general public’s perception of the signs.

It must be pointed out that the applicant does not dispute the Board of Appeal’s finding that the relevant public is the general public or the fact that it focused, for reasons of procedural economy, on the Spanish public’s perception of the signs. Those findings do not contain any error of assessment and must be upheld.

As regards the applicant’s argument that the earlier mark covers luxury goods, with the result that the relevant public’s level of attention with regard to those goods is enhanced, it must be pointed out, as observed by EUIPO, that, in the context of opposition proceedings, the comparison of the goods must concern the description of the goods covered by the marks at issue and not the goods for which the marks are actually used (judgment of 7 September 2006, Meric v OHIM – Arbora & Ausonia (PAM-PIM’S BABY-PROP), T‑133/05, EU:T:2006:247, paragraph 30). However, it is not apparent from the description of the goods covered by the earlier mark, as reproduced in paragraph 7 above, that they are, as the applicant submits, expensive and high-end goods. In the absence of any specific information to the contrary, they may be part of any range and are not necessarily expensive or luxury items (see, to that effect, judgment of 18 January 2023, Rolex v EUIPO – PWT (Device of a crown), T‑726/21, not published, EU:T:2023:6, paragraph 33 and the case-law cited).

In those circumstances, the Board of Appeal manifestly did not make any error of assessment in the definition of the relevant public and its level of attention.

The comparison of the goods

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. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as the distribution channels of the goods concerned (see judgment of 14 May 2013, Sanco v OHIM – Marsalman (Representation of a chicken), T‑249/11, EU:T:2013:238, paragraph 21 and the case-law cited).

The applicant submits that the goods in Class 28 covered by the mark applied for and the goods in Class 25 covered by the earlier mark are dissimilar. It adds that those goods are neither manufactured by the same undertaking nor complementary or in competition with each other by nature, do not target the same consumers, do not have the same nature and do not have the same purpose. Furthermore, the applicant refers to a decision of the Opposition Division from which it is, in the applicant’s view, apparent that ‘gymnastic and sporting articles’ and ‘clothing’ belong to different categories and claims that the Board of Appeal did not justify why it was necessary to depart from EUIPO’s decision-making practice in the present case.

EUIPO disputes the applicant’s arguments.

As regards the reliance on the Opposition Division’s decision, EUIPO points out that each case must be judged on its own merits, that the Board of Appeal is not bound by previous decisions in other cases and that the legality of the decisions of the Boards of Appeal must be assessed solely on the basis of Regulation 2017/1001 and not on the basis of previous practice.

In the present case, as regards, first, the goods in Classes 18 and 25, the Board of Appeal endorsed the Opposition Division’s finding that those goods were in part identical and in part similar. Those findings, which are not, moreover, disputed by the applicant, do not contain any error of assessment and must be upheld.

As regards, secondly, the goods in Class 28 covered by the mark applied for, the Board of Appeal found that there was a low degree of similarity between those goods and the goods in Class 25 covered by the earlier mark.

First, in order to reach that conclusion, the Board of Appeal noted that the broad category of ‘clothing for gentlemen, ladies and children in general’ covered by the earlier mark also included sports clothing, inter alia, ‘swimming costumes’, ‘sportsuits’, ‘wind resistant jackets’, ‘ski trousers’ and other garments or items of clothing designed specifically to be used when practising various sports. In the Board of Appeal’s opinion, the earlier mark included sports clothing, which was indispensable for the practice of sports, such as, for example, skating, skiing and sailing.

Secondly, the Board of Appeal found that the goods in Class 28 covered by the mark applied for were complementary to the goods in Class 25 covered by the earlier mark, since they were to be used together for practising sport and addressed the same needs of the end user. In the Board of Appeal’s view, those goods were often sold under the same mark or in the same sales outlets, with the result that consumers might think that the same undertaking was responsible for manufacturing them.

In that regard, it must be pointed out that it has already been held that the category of goods in Class 25 covered by the earlier mark may also include articles of clothing that are used for various sporting disciplines (see, to that effect, judgment of 27 October 2021, Jiruš v EUIPO – Nile Clothing (Racing Syndicate), T‑356/20, not published, EU:T:2021:736, paragraph 51 and the case-law cited). Furthermore, in the present case, the goods in Class 25 covered by the earlier mark expressly include clothing for sports, such as swimming costumes, sportsuits, ski trousers and sports shoes.

Likewise, the sports clothing in Class 25 may be produced by the same manufacturers and marketed under the same mark as the gymnastic and sporting apparatus and articles in Class 28 covered by the mark applied for. Furthermore, the goods in question may share the same distribution channels and may, in particular, be sold in the same specialist shops. In addition, they are complementary goods for certain sporting disciplines, the practice of which requires sporting articles and articles for protecting the body and also specific clothing to be used together (see judgment of 27 October 2021, Racing Syndicate, T‑356/20, not published, EU:T:2021:736, paragraph 52 and the case-law cited).

Furthermore, it has already been held that ‘clothing, footwear and headgear’ in Class 25 and ‘sporting and gymnastic articles not included in other classes’ in Class 28 are indeed different in nature, but that they may, nevertheless, be complementary and may be purchased by the same public (see, to that effect, judgment of 19 October 2017, Leopard v EUIPO – Smart Market (LEOPARD true racing), T‑7/15, not published, EU:T:2017:731, paragraphs 45 and 46).

As regards the claim that the Board of Appeal did not justify the need to depart from EUIPO’s practice, it must be borne in mind that the obligation to state reasons does not require the Boards of Appeal to provide an account that follows exhaustively and one by one all the lines of reasoning articulated by the parties before them. It is sufficient if they set out the facts and the legal considerations having decisive importance in the context of the decision (judgment of 15 January 2015, MEM v OHIM (MONACO), T‑197/13, EU:T:2015:16, paragraph 19). That is the case here.

It follows that the Board of Appeal’s assessments relating to the comparison of the goods manifestly do not contain any error of assessment.

The comparison of the signs

43The 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 this 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).

44In the present case, the word mark applied for HERZO must be compared with the figurative mark represented below:

45As regards, first, the visual comparison of the signs, the Board of Appeal found that the signs at issue were similar to a high degree. It observed that they had the same structure and the same length, that they had the letters ‘h’, ‘e’, ‘r’ and ‘o’ in common and that they differed only in their fourth letter, namely ‘n’ in the earlier mark and ‘z’ in the mark applied for. Moreover, the Board of Appeal endorsed the argument of the other party before it that the letter ‘z’ was a rotation by 90 degrees of the upper case letter ‘n’.

46The applicant submits that there is no visual similarity in the present case. First, it claims that the Board of Appeal failed to consider the importance of the stylisation of the earlier mark. In particular, it states that the letters ‘h’, ‘e’ and ‘r’ in the sole word element in the earlier mark are peculiar and extremely uniquely designed and are intended to attract the attention of the public, which pays increased attention to the beginning of a sign. Secondly, the applicant submits that the Board of Appeal was wrong in upholding the argument of the other party to the proceedings that the letter ‘z’ is a rotation by 90 degrees of the upper case letter ‘n’. In that regard, it argues that the consumer perceives a mark as a whole and ‘[does not] worr[y] about whether you can turn one term into another term by rotating a letter’.

47EUIPO disputes the applicant’s arguments.

48In that regard, it must be pointed out that, where a figurative mark containing a word element is visually compared with a word mark, the marks are considered to be visually similar if that word element and the word mark have in common a significant number of letters in the same position and if that word element is not highly stylised, notwithstanding the graphic representation of the letters in different type fonts, in italics or bold, in lower case or upper case, or in colour (see judgment of 27 January 2021, Olimp Laboratories v EUIPO – OmniVision (Hydrovision), T‑817/19, not published, EU:T:2021:41, paragraph 77 and the case-law cited).

49In the present case, it must be stated that, contrary to the applicant’s claims, the Board of Appeal took account of the stylisation of the earlier mark, as is apparent from paragraphs 47, 48 and 52 of the contested decision. It is true that it found that that aspect of the mark had a decorative purpose and would not divert the public’s attention away from the word element. However, that position of the Board of Appeal manifestly does not contain any error of assessment. As EUIPO submits, the graphic elements of the earlier mark, which are confined to the slightly stylised font, the somewhat larger size of the first letter, ‘h’, and the underlining of the sign, are primarily decorative and will not therefore attract the attention of consumers.

50Moreover, it is important to note that the font used in the earlier mark, even though it contains some stylistic elements, will not prevent the relevant public from perceiving all the letters comprising the element ‘herno’.

51As regards the two word elements in the marks at issue, it must be stated, as observed by the Board of Appeal, that four out of the five letters comprising those word elements are common to both of them and that those letters are in the same order, with the result that those elements differ only in their fourth letter, namely ‘n’ in the earlier mark and ‘z’ in the mark applied for. However, the difference resulting from the letters ‘n’ and ‘z’ is manifestly not sufficient to offset any similarity between the signs, which coincide in their initial parts, parts to which the public is likely to pay more attention, since it reads from left to right.

52As regards the Board of Appeal’s finding that the letter ‘z’ is a rotation by 90 degrees of the upper case letter ‘n’, it must be understood as an argument which is intended to show that those letters are similar and not as ‘a subconscious rotation of letters at the relevant moment of a consumer’s first perception of a sign’, as the applicant submits.

53In those circumstances, the Board of Appeal was manifestly right in finding that the signs at issue were visually similar to a high degree.

54As regards, secondly, the phonetic comparison of the signs, the Board of Appeal found that the signs at issue were similar to a high degree. In particular, it pointed out that the pronunciation of the signs at issue differed only in the fourth letter of those signs, namely ‘n’ with regard to the earlier mark and ‘z’ with regard to the mark applied for. Furthermore, in the Board of Appeal’s view, the signs had a highly similar rhythm and intonation given that they had an identical vowel sequence, namely ‘e’ and ‘o’.

55The applicant submits that there is no phonetic similarity between the signs. According to the applicant, given that the word elements at issue consist of two syllables, the difference in one letter has a major impact on the overall impression and makes each element unique. Moreover, it argues that, as regards the element ‘herno’, the stress is primarily placed on the first syllable, since the letter ‘n’ corresponds to a weak sound which fades into the background within the sound of the whole word. By contrast, it contends that the letter ‘z’ in the word element ‘herzo’ plays a dominant role, with the result that, in that element, greater stress is placed on the second syllable. It submits that the Board of Appeal therefore failed to recognise that the letters ‘n’ and ‘z’ were different and that they led to the pronunciation of the word elements ‘herno’ and ‘herzo’ being different.

56EUIPO disputes the applicant’s arguments.

57It must be pointed out, as observed by the Board of Appeal, that the pronunciation of the signs at issue coincides in the sound of four of the five letters comprising those signs, namely ‘h’, ‘e’, ‘r’ and ‘o’, and that the pronunciation of the word elements at issue has a highly similar rhythm and intonation on account of the identical vowel sequence ‘e’ and ‘o’. By contrast, the signs at issue differ as regards the fourth letter in those signs.

58In that regard, it must, however, be observed that the applicant’s argument that the impact of the letters ‘z’ and ‘n’ in the signs at issue leads to the pronunciation of the words as a whole being different is not in any way substantiated.

59Consequently, the Board of Appeal was manifestly right in finding that the signs were phonetically similar to a high degree.

60As regards, thirdly, the conceptual comparison of the signs, the Board of Appeal found that that comparison was impossible in the present case, since neither of the signs had any meaning for the Spanish public.

61The applicant claims, in essence, that there is no conceptual similarity in the present case and submits that the signs are conceptually dissimilar for the part of the public which is aware of the meaning of the two terms comprising them. It thus argues that the term ‘herzo’ is known as an abbreviation of the name of the German town Herzogenaurach in which the applicant’s headquarters are located, whereas the term ‘herno’ refers to the Erno valley in Italy.

62EUIPO disputes the applicant’s arguments.

63In the present case, it has not been established that the Spanish public is aware of the meaning of the two marks as a reference to geographical locations, with the result that the Board of Appeal was manifestly justified in finding that a conceptual comparison was not possible.

The global assessment of the likelihood of confusion

64A 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).

65The applicant submits that there is no likelihood of confusion in the present case since the signs at issue are visually and phonetically dissimilar and a conceptual comparison is not possible in the present case. It argues that the mere fact that the signs at issue contain the letters ‘h’ ‘e’ ‘r’ and ‘o’ is insufficient to create a similarity between them, because the additional components cannot be disregarded. As regards the goods in Class 28 covered by the mark applied for, it takes the view that those goods are dissimilar to those covered by the earlier mark, with the result that any likelihood of confusion with regard to those goods is excluded. As regards the goods in Classes 18 and 25, the applicant states that the visual similarity of the signs is of particular importance with regard to those goods, with the result that, even if there were any phonetic similarity, there would be no likelihood of confusion because there is no visual similarity.

66Furthermore, the applicant submits that the other party to the proceedings before the Board of Appeal has not taken any defensive action against the HERZO marks registered in France. It argues that it follows that there can be no likelihood of confusion as regards the marks at issue.

67EUIPO disputes the applicant’s arguments.

68In the present case, the Board of Appeal found that, taking into account the concept of ‘imperfect recollection’ and the interdependence of the various factors, there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.

69It is manifestly clear from the foregoing assessments that the goods at issue are in part identical and in part similar (see paragraphs 34 and 42 above), that the signs at issue are visually and phonetically similar to a high degree (see paragraphs 53 and 59 above) and that a conceptual comparison of those signs is not possible in the present case (see paragraph 63 above). Furthermore, as was found by the Board of Appeal, the earlier mark manifestly has a normal degree of inherent distinctiveness.

70In those circumstances, the Board of Appeal manifestly did not make any error of assessment in finding that there was a likelihood of confusion.

71In that regard, it must be pointed out that the applicant’s argument that there is no likelihood of confusion is based on the premisses that, first, the signs are visually and phonetically different and, secondly, the goods in Class 28 covered by the mark applied for are different from those in Class 25 covered by the earlier mark. However, those premisses are manifestly incorrect, as is apparent from the above considerations (see paragraphs 42, 53 and 59 above).

72So far as concerns the applicant’s argument that, in the context of the goods in Classes 18 and 25, preponderant importance should be attached to the visual similarity between the signs at issue, it must be stated that that argument is, in any event, manifestly ineffective in the present case. Given that, in the present case, the degree of visual and phonetic similarity between the signs at issue is the same, namely high, attaching greater importance to the visual aspect of the comparison would have no bearing on the assessment of the likelihood of confusion.

73As regards the applicant’s argument that the other party to the proceedings before the Board of Appeal has not taken any action against the HERZO marks registered in France, it must be stated that that argument is manifestly irrelevant. The relevant public which the Board of Appeal took into account for the purpose of assessing whether there was a likelihood of confusion is the Spanish general public, the perception of which is not necessarily identical to that of the French public.

74Lastly, as regards the various marks registered in respect of goods in Class 25 which are referred to by the applicant and which differ only in one letter, it must be borne in mind that the examination of any trade mark application must be stringent and full, in order to prevent trade marks from being improperly registered. That examination must be undertaken in each individual case. The registration of a sign as a mark depends on specific criteria, which are applicable in the factual circumstances of the particular case and the purpose of which is to ascertain whether the sign at issue is caught by a ground for refusal (judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 77, and of 9 March 2017, Maximum Play v EUIPO (MAXPLAY), T‑400/16, not published, EU:T:2017:152, paragraph 49).

75It follows from all of the foregoing assessments that the single plea in support of the present action is manifestly unfounded, with the result that that action must be dismissed, in its entirety, as manifestly lacking any foundation in law.

Costs

76Under 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.

77In the present case, although the applicant has been unsuccessful, EUIPO has applied for the applicant to be ordered to pay the costs only in the event that the parties are summoned to attend a hearing. As no hearing has taken place, it is appropriate to order each party to bear its own costs.

On those grounds,

hereby orders:

1.The action is dismissed as manifestly lacking any foundation in law.

2.Each party shall bear its own costs.

Luxembourg, 29 June 2023.

Registrar

President

*Language of the case: English.