Meica v EUIPO - Lenard (CHIPSY KINGS) (EU trade mark - Judgment) [2024] EUECJ T-157/24 (11 December 2024)

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( EU trade mark - Opposition proceedings - Application for the EU word mark CHIPSY KINGS - International registration of the earlier word mark Curry King - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EU) 2017/1001 - Examination of the facts of EUIPO’s own motion - Article 95(1) of Regulation 2017/1001 )

Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG, established in Edewecht (Germany), represented by S. Russlies, lawyer,

European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,

composed, at the time of the deliberations, of P. Škvařilová-Pelzl (Rapporteur), acting as President, I. Nõmm and D. Kukovec, Judges,

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,

1 By its action under Article 263 TFEU, the applicant, Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG, seeks annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 January 2024 (Case R 376/2023-5) (‘the contested decision’).

2 On 4 March 2021, the other party to the proceedings before the Board of Appeal of EUIPO, András Lénárd, filed an application for registration of an EU trade mark with EUIPO in respect of the word sign CHIPSY KINGS.

3 The mark applied for covered goods and services in, inter alia, Classes 29, 30 and 35 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, which correspond, for each of those classes, to the following description:

– Class 29: ‘French fries; potato fritters; vegetable-based chips; potato sticks; cassava chips; soy chips; purple sweet potato chips; kale chips; potato snacks; vegetable chips; potato flakes; potato crisps in the form of snack foods; potato crisps; hash browns; waffle fries; low-fat potato crisps; yucca chips’;

– Class 30: ‘Wholewheat crisps; grain-based chips; crispbread snacks; extruded wheat snacks; vegetable flavoured corn chips; tortilla chips; rice crisps; snack foods made from corn; snack food products made from potato flour; wonton chips; flour based chips; puffed cheese balls [corn snacks]; crisps made of cereals; seaweed flavoured corn chips; taco chips; corn chips’;

– Class 35: ‘Retail services relating to food; retail services via global computer networks related to foodstuffs; mail order retail services related to foodstuffs; presentation of goods on communication media, for retail purposes; retail services via catalogues related to foodstuffs’.

4 On 1 June 2021, the applicant filed a notice of opposition to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above.

5 The opposition was based on the international registration designating the European Union in respect of the word mark Curry King, which was registered on 1 December 2015 under No 1 285 017 in respect of goods in Classes 29 and 30 corresponding, for each of those classes, to the following description:

– Class 29: ‘Meat products; sausage products; vegetarian sausage products; prepared dishes consisting primarily of meat products and/or sausage products and/or meat substitute products and/or vegetarian sausage products and/or vegetables and/or mushrooms and/or pulses and/or soy products, in particular tofu, and/or potatoes, and/or dairy products and/or egg products and/or edible oils’;

– Class 30: ‘Prepared dishes, consisting primarily of cereals and/or rice and/or corn and/or pasta and/or dumplings and/or sauces and/or spices’.

6 The ground relied on in support of the opposition was, inter alia, that referred to 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 By decision of 1 February 2023, the Opposition Division rejected the opposition in its entirety.

8 On 14 February 2023, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.

9 By the contested decision, the Board of Appeal dismissed the appeal on the ground that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.

– order the applicant to pay the costs in the event that an oral hearing is convened.

12 The applicant puts forward, in essence, two pleas in law, alleging, first, infringement of Article 95(1) of Regulation 2017/1001 and, secondly, infringement of Article 8(1)(b) of that regulation. The Court considers it appropriate to examine the second plea before the first.

The second plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001

13 The applicant criticises the Board of Appeal for not finding that there was a likelihood of confusion. First, it argues, the Board of Appeal wrongly considered that the goods in Class 30 covered by the signs at issue were similar only to a medium degree. Secondly, it did not take account of the fact that the word elements ‘chipsy’ and ‘curry’ shared the same first and last letters, thus reinforcing the visual similarity of those signs. Thirdly, it wrongly considered that part of the relevant public will perceive the verbal element ‘chipsy’ as an invented word, even though it is descriptive of the goods and services covered by the mark applied for.

15 It should be recalled that, under Article 8(1)(b) of Regulation 2017/1001, 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. Furthermore, under Article 8(2)(a)(iv) of Regulation 2017/1001, ‘earlier trade marks’ means trade marks registered under international arrangements which have effect in the European Union with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.

16 According to settled case-law, 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. According to the same case-law, 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).

17 For the purposes 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).

18 Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (see, to that effect, judgment 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 76 and the case-law cited).

19 According to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of products 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 (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).

20 In paragraph 16 of the contested decision, the Board of Appeal took the view that, in the light of the earlier trade mark which is an international registration designating the European Union, the relevant public consisted of consumers in the European Union. Furthermore, it noted, in paragraphs 17 to 19 of that decision, that the goods at issue, which were food products, and the retail services relating to food, primarily targeted the general public whose level of attention was average.

21 There is no reason to question those assessments, which are, moreover, not disputed by the applicant.

22 In paragraph 24 of the contested decision, the Board of Appeal took the view that ‘French fries; potato fritters; vegetable-based chips; potato sticks; cassava chips; soy chips; purple sweet potato chips; kale chips; potato snacks; vegetable chips; potato flakes; potato crisps in the form of snack foods; potato crisps; hash browns; waffle fries; low-fat potato crisps; yucca chips’, in Class 29 and covered by the mark applied for, were identical to ‘prepared dishes consisting primarily of vegetables and/or mushrooms and/or pulses and/or soy products, in particular tofu, and/or potatoes’, in Class 29, covered by the earlier mark.

23 Furthermore, in paragraphs 29 to 33 of the contested decision, the Board of Appeal noted that the ‘retail services’ in Class 35 and covered by the mark applied for, had a ‘certain degree of similarity’ with the goods in Classes 29 and 30 of the earlier mark.

24 There is no reason to question those assessments, which are, moreover, not disputed by the applicant.

25 First, in paragraphs 26 and 27 of the contested decision, the Board of Appeal found that the goods in Class 30 covered by the mark applied for, which were snack food products made from potato flour, were similar to a medium degree to ‘prepared dishes consisting primarily of potatoes’, in Class 29, covered by the earlier mark. In its view, the general purpose of the goods at issue is not the same since snack food is normally consumed between main meals. In addition, although snack food is not generally a prepared dish, it can be used as part of a prepared dish. Furthermore, the ingredients are the same or highly similar, while the producers and distribution channels may also be the same.

26 Secondly, those considerations also apply in respect of ‘wholewheat crisps; grain-based chips; crispbread snacks; extruded wheat snacks; vegetable flavoured corn chips; tortilla chips; rice crisps; snack foods made from corn; wonton chips; flour based chips; puffed cheese balls [corn snacks]; crisps made of cereals; seaweed flavoured corn chips, taco chips; corn chips’, in Class 30, covered by the mark applied for, which are therefore similar to a medium degree to ‘prepared dishes consisting primarily of vegetables and/or mushrooms and/or pulses and/or soy products, in particular tofu, and/or potatoes’, in Class 29, and ‘prepared dishes, consisting primarily of cereals and/or corn’, in Class 30, covered by the earlier mark.

27 In that regard, the applicant claims, in essence, that the goods in Class 30 covered by the mark applied for are identical to the ‘prepared dishes’ in Classes 29 and 30 covered by the earlier mark. In its view, there is no tangible delimitation between snacks and prepared dishes since it is for the consumer to decide whether to regard a more or less small dish as a snack.

28 The applicant’s argument cannot, however, succeed in the light of the different purposes of the goods at issue, which the Board of Appeal correctly observed. Snack foods, such as crisps (‘chips’), covered by the mark applied for, are consumed quickly and easily between main meals and are generally not intended to replace dishes, including ‘prepared dishes’ covered by the earlier mark, which are consumed during those meals. In those circumstances, the Board of Appeal did not make any error of assessment by finding that the goods in Class 30, covered by the mark applied for, were similar to a medium degree to the ‘prepared dishes’, in Classes 29 and 30, covered by the earlier mark.

29 According to the case-law, two 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, aural and conceptual aspects (judgments of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 30, and of 10 December 2008, MIP Metro v OHIM – Metronia (METRONIA), T‑290/07, not published, EU:T:2008:562, paragraph 41).

30 The global assessment of the likelihood of confusion must, so far as concerns the visual, aural 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 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).

31 In addition, it must be pointed out that the higher or lower level of the distinctive character of the elements common to a mark applied for and an earlier mark is one of the relevant factors in the context of the assessment of the similarity of the signs (see judgment of 5 October 2020, Eugène Perma France v EUIPO – SPI Investments Group (NATURANOVE), T‑602/19, not published, EU:T:2020:463, paragraph 26 and the case-law cited).

32 In order to determine the distinctive character of an element making up a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings. In making that assessment, account should be taken, in particular, of the inherent characteristics of the element in question in the light of whether it is at all descriptive of the goods or services for which the mark has been registered (see judgment of 5 October 2020, NATURANOVE, T‑602/19, not published, EU:T:2020:463, paragraph 27 and the case-law cited).

33 Where some elements of a trade mark are descriptive of the goods and services in respect of which that mark is protected or the goods and services covered by the application for registration, those elements are recognised as having only a low, or even very low, distinctive character. Most often, it will be possible to recognise those elements as having distinctive character only because of their combination with the other elements of the mark. Owing to their low, or even very low, distinctive character, descriptive elements of a trade mark are not generally regarded by the public as being dominant in the overall impression conveyed by that mark, unless, particularly because of their position or their size, they appear likely to make an impression on consumers and to be remembered by them. That does not mean, however, that the descriptive elements of a mark are necessarily negligible in the overall impression conveyed by that mark. It is necessary, in particular, to examine whether other elements of the mark are likely to dominate, by themselves, the relevant public’s recollection of that mark (see judgment of 18 January 2023, YAplus DBA Yoga Alliance v EUIPO – Vidyanand (YOGA ALLIANCE INDIA INTERNATIONAL), T‑443/21, not published, EU:T:2023:7, paragraph 69 and the case-law cited).

34 In addition, it must be borne in mind that, although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, while perceiving a word sign, that consumer will identify the elements which, for him or her, suggest a concrete meaning or resemble words which he or she knows (see judgment of 5 October 2020, NATURANOVE, T‑602/19, not published, EU:T:2020:463, paragraph 28 and the case-law cited).

35 In the present case, as regards the earlier mark, the Board of Appeal found, first of all, in essence, in paragraphs 43 and 44 of the contested decision, that the word element ‘curry’ will be understood by all consumers in the European Union as being descriptive of either the type of food that is produced or served, or its flavour, with the result that it was non-distinctive. In addition, in paragraph 45 of that decision, it took the view that most of the relevant public will perceive the word element ‘king’ as a term alluding to a product with superior characteristics. It observed that it was a well-known fact that the term ‘king’ was widely used in marketing to praise supreme characteristics of goods or services and also that the expression ‘king-size’ had become an internationally known synonym for a ‘product in an extra-large size’. It therefore concluded that the word element ‘king’ had a low distinctive character for the goods and services at issue.

36 As regards the mark applied for, the Board of Appeal found, in paragraph 46 of the contested decision, that the word element ‘chipsy’ was more distinctive than the word element ‘kings’. That word element, in its view, is an invented word, alluding to the word ‘chips’. It nevertheless noted that, first, at least part of the public of the European Union will not understand that allusion and, consequently, the word ‘chipsy’. Secondly, it observed that the consumers who perceived the word element ‘chipsy’ as an allusion to chips will see it in combination with ‘kings’ and will assume that ‘chipsy’ is a characteristic of the kings. In addition, it was of the opinion that the word element ‘chipsy’, because of its position at the beginning of the mark applied for, would have a stronger impact on consumers and would influence the overall perception of the mark, particularly since it was not present in the earlier mark and had a stronger distinctive character than the word element ‘kings’.

37 The applicant submits, in that regard, that the Board of Appeal made an error of assessment by finding that the word element ‘chipsy’ had a high distinctive character for the part of the relevant public which perceives it as an invented word. In fact, it argues, the term ‘chipsy’ exists in Polish to designate chips and is thus descriptive of the goods and services covered by the mark applied for. The same is true for the non-Polish-speaking public of the European Union who recognise the English term ‘chips’ in the word element ‘chipsy’ since, according to settled case-law, linguistic inaccuracies do not prevent the public from recognising the meaning of words.

38 In the present case, as regards the earlier mark, it is appropriate to note, as the Board of Appeal did, that the word element ‘curry’ will be understood by the relevant public as ‘a food, dish, or sauce in Indian cuisine seasoned with a mixture of pungent spices’ or ‘a food or dish seasoned with curry powder’, with the result that it is descriptive of either the type of food that is produced or served, or its flavour. Where some elements of a mark are descriptive of the goods in respect of which that mark is registered or the goods covered by the application for registration, those elements are recognised as having only a low, or even very low, distinctive character (see, to that effect, judgments of 12 September 2007, Koipe v OHIM – Aceites del Sur (La Española), T‑363/04, EU:T:2007:264, paragraph 92, and of 13 December 2007, Cabrera Sánchez v OHIM – Industrias Cárnicas Valle (el charcutero artesano), T‑242/06, not published, EU:T:2007:391, paragraph 52 and the case-law cited). It follows that the word element ‘curry’ has, at most, a low distinctive character.

39 Furthermore, it should be borne in mind that, according to settled case-law, the term ‘king’ is used in the laudatory sense of ‘the best’, so that it can, in particular, be understood as praising the quality of the goods in question and therefore has a weak distinctive character (see, to that effect, judgment of 29 May 2024, Chiquita Brands v EUIPO – Jara 2000 (CHIQUITA QUEEN), T‑79/23, not published, EU:T:2024:327, paragraph 53 and the case-law cited), which the Board of Appeal correctly observed.

40 It should therefore be noted that no word element in the earlier mark is more distinctive than any other for all of the relevant public.

41 As regards the mark applied for, it is appropriate to observe, as the applicant did, that the term ‘chipsy’ does exist in Polish to designate chips. Similarly, as the Board of Appeal essentially found, part of the relevant public may recognise the English term ‘chips’ in the word element ‘chipsy’ and, accordingly, associate it with that term. Therefore, taking into account the fact that the goods covered by the mark applied for are essentially chips and the retail services covered by that mark may also relate to such food products, it is clear that, for part of the relevant public, the word element ‘chipsy’ is descriptive of those goods and services and, accordingly, has only a low distinctive character. In such a case, the word element ‘chipsy’ is not more distinctive than the word element ‘kings’.

42 By contrast, as the Board of Appeal observed, it cannot be ruled out that another part of the relevant public does not understand the English term ‘chips’ and will therefore not associate that term with the word element ‘chipsy’. It follows that, for that part of the relevant public, the word element ‘chipsy’ has a distinctive character in relation to the goods and services covered by the mark applied for. In such a case, the word element ‘chipsy’ has a higher distinctive character than the word element ‘kings’.

43 In paragraph 49 of the contested decision, the Board of Appeal found, in essence, that the signs at issue were visually similar only to a low degree in so far as they both contain the word ‘king’, but differed in the presence of the word element ‘chipsy’ in the mark applied for, which was its most distinctive element and was placed at the start thereof, the presence of the additional letter ‘s’ at the end of that mark and the presence of the word element ‘curry’ in the earlier mark.

44 The applicant claims that the Board of Appeal should have found a medium degree of visual similarity in so far as, first, the word elements ‘chipsy’ and ‘curry’ share the first letter ‘c’ and the last letter ‘y’ and, secondly, the word element ‘chipsy’ of the mark applied for and the word element ‘curry’ of the earlier mark are non-distinctive, so that the common word element ‘king’ is the most distinctive and thus has a greater impact on the visual comparison of the signs at issue.

45 First, it should be noted that, while the signs at issue admittedly share the word element ‘king’, they differ clearly in the word elements ‘chipsy’ and ‘curry’, which are present in the mark applied for and the earlier mark respectively. In addition, while the word elements ‘chipsy’ and ‘curry’ do coincide in their first and last letters, it should be observed however that their middle letters are completely different, such that that coincidence will not stand out to the relevant public and therefore will not have a significant impact on the visual similarity of those signs.

46 Secondly, the applicant cannot rely on the erroneous premiss that the common element ‘king’ has a greater impact on the visual comparison of the signs at issue. It was established in paragraphs 38 to 41 above, first, that, for part of the relevant public, no word element of the signs at issue is more distinctive than any other. By contrast, for the other part of the relevant public, the word element ‘curry’ of the earlier mark is not more distinctive than its word element ‘king’, while the word element ‘chipsy’ of the mark applied for is more distinctive than its word element ‘kings’. Accordingly, there is no case in which the common element ‘king’ is more distinctive than the word elements ‘curry’ and ‘chipsy’.

47 In those circumstances, the Board of Appeal did not make an error of assessment in finding that the signs at issue were visually similar to a low degree.

48 In paragraph 50 of the contested decision, the Board of Appeal found that the signs at issue were aurally similar only to a low degree since they coincided in the pronunciation of the element ‘king’, but differed in the pronunciation of the element ‘chipsy’ in the mark applied for, which is, in particular, placed at the start of that mark and which is more distinctive than the element ‘king’, and in the element ‘curry’ of the earlier mark.

49 The applicant claims that the signs at issue are aurally similar to a medium degree in so far as the common word element ‘king’ is the most distinctive element and thus has a greater impact on the aural comparison of those signs.

50 In that regard, it is appropriate to observe, as the Board of Appeal did, that, while the signs at issue admittedly coincide in the pronunciation of the element ‘king’, they differ in the pronunciation of the final letter ‘s’ of the word element ‘kings’ of the mark applied for, and especially in the pronunciation of the element ‘chipsy’ of the same mark and in the element ‘curry’ of the earlier mark.

51 In addition, for the reasons set out in paragraph 46 above, the applicant cannot rely on the erroneous premiss that the common element ‘king’ is more distinctive than the elements ‘chipsy’ and ‘curry’ of the signs at issue.

52 In those circumstances, the Board of Appeal did not make an error of assessment in finding that the signs at issue were aurally similar to a low degree.

53 In paragraph 51 of the contested decision, the Board of Appeal found, in essence, that the signs at issue were conceptually similar to a low degree. Those signs are, in its view, conceptually similar because of their common element ‘king’, which will be associated with a ‘king’ or various ‘kings’, or indeed with goods of superior quality or large size. However, it noted that the word ‘chipsy’ of the mark applied for could be perceived as an invented word alluding to ‘chips’, as a pun referring to the famous flamenco group ‘Gipsy Kings’ or as a fanciful term whose meaning is unknown. The mark applied for could also be perceived by the English-speaking public in the European Union as a play on words, referring to ‘kings’ who are ‘chipsy’. Such associations are missing in the earlier mark, since the term ‘curry’ gives rise to different mental associations in the minds of the relevant public.

54 The applicant simply submits that the signs at issue are conceptually similar to a medium degree in so far as the common element ‘king’ is the most distinctive element and thus has a greater impact on the conceptual comparison of those signs.

55 In that regard, first, it should be observed that the mark applied for consists of the word element ‘chipsy’, which may be associated with chips (see paragraph 41 above), and the word element ‘kings’, which may be associated, in particular, with kings or goods of superior quality (see paragraph 39 above). As the Board of Appeal correctly found, the mark applied for, taken as a whole, may be perceived, because of its structure, as a pun referring to the famous flamenco group ‘Gipsy Kings’ or indeed to kings who are ‘chipsy’, thus being capable of referring to the characteristics of chips. By contrast, for the part of the relevant public who will not understand the allusion to chips in the word element ‘chipsy’ of the mark applied for, that mark will have no particular overall meaning.

56 Secondly, the earlier mark consisted of the word element ‘curry’, which will be associated with a spice or a dish of Indian origin (see paragraph 38 above), and of the word element ‘king’, which will, in particular, be associated with a king or goods of superior quality. Accordingly, the earlier mark, taken as a whole and in the light of its structure, will be understood by the relevant public as the ‘king of curry’ or as lauding a curry of superior quality.

57 Therefore, while the signs at issue are conceptually similar because of their common element ‘king’, it should nevertheless be observed that, each taken as a whole, they produce different mental associations in the minds of the relevant public. In those circumstances, the Board of Appeal did not make an error of assessment in finding that those signs were conceptually similar to a low degree.

58 Furthermore, for the reasons set out in paragraph 46 above, the applicant cannot rely on the erroneous premiss that the common element ‘king’ is more distinctive than the elements ‘chipsy’ and ‘curry’ of the signs at issue.

59 It follows from paragraphs 53 to 59 of the contested decision that the Board of Appeal started from the premiss that the earlier mark had an average distinctive character, despite its very low inherent distinctiveness, in order to take account of the possibility that that mark had been subject to extensive use on the German market for sausages and sausage products, which might raise its level of distinctiveness. There is no reason to call into question the taking into account of that premiss by the Board of Appeal, which, moreover, is not contested by the applicant.

60 According to settled case-law, 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 (see judgments of 5 March 2020, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO, C‑766/18 P, EU:C:2020:170, paragraphs 67 to 69 and the case-law cited, and of 15 October 2020, Laboratorios Ern v EUIPO – Bio-tec Biologische Naturverpackungen (BIOPLAST BIOPLASTICS FOR A BETTER LIFE), T‑2/20, not published, EU:T:2020:493, paragraph 69 and the case-law cited; see also, by analogy, judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17).

61 It is also settled case-law that the degree of distinctiveness of the earlier mark, which determines the extent of the protection conferred by it, is one of the relevant factors in the case in point. Where the distinctiveness of the earlier mark is significant, such a circumstance is likely to increase the likelihood of confusion. That being the case, the existence of a likelihood of confusion is not precluded where the distinctiveness of the earlier mark is weak (see judgment of 5 March 2020, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO, C‑766/18 P, EU:C:2020:170, paragraph 70 and the case-law cited).

62 Where the earlier trade mark and the mark applied for coincide in an element that is weakly distinctive with regard to the goods at issue, the global assessment of the likelihood of confusion does not often lead to a finding that such likelihood exists (judgments of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 55, and of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 53).

63 In paragraphs 63 to 68 of the contested decision, the Board of Appeal found, in essence, that there was no likelihood of confusion between the marks at issue. Although the goods at issue were identical and the earlier mark had an average distinctive character, those signs were visually, aurally and conceptually similar only to a low degree and the relevant public will be in a position to perceive the clear differences which characterise those signs.

64 In that regard, the applicant submits that the Board of Appeal should have found that there was a likelihood of confusion, in view of the goods and services at issue having at least a medium degree of similarity, the signs at issue being visually, aurally and conceptually similar to a medium degree, and the relevant public having an average level of attention. Furthermore, the applicant criticises the Board of Appeal for not taking into account the reasoning followed in the judgment of 20 September 2011, Meica v OHIM – TofuTown.com (TOFUKING) (T‑99/10, not published, EU:T:2011:497, paragraph 38), and in the judgment of 13 December 2011, Meica v OHIM – Bösinger Fleischwaren (Schinken King) (T‑61/09, not published, EU:T:2011:733, paragraphs 58 and 59), judgments which, in its view, apply fully to the present case.

66 First, it should be borne in mind that, where the elements of similarity between two signs arise from the fact that they share a component which has weak inherent distinctiveness, the impact of such elements of similarity on the global assessment of the likelihood of confusion is itself low (see, to that effect, judgments of 22 February 2018, International Gaming Projects v EUIPO – Zitro IP (TRIPLE TURBO), T‑210/17, not published, EU:T:2018:91, paragraph 73 and the case-law cited; of 15 October 2020, Decathlon v EUIPO – Athlon Custom Sportswear (athlon custom sportswear), T‑349/19, not published, EU:T:2020:488, paragraph 90; and of 20 January 2021, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO – M. J. Dairies (BBQLOUMI), T‑328/17 RENV, not published, EU:T:2021:16, paragraph 64 and the case-law cited).

67 That is the case here in respect of the weakly distinctive and non-dominant element of similarity ‘king’, the presence of which in both signs at issue is not decisive and has only a low impact on the global assessment of the likelihood of confusion.

68 In addition, it follows from the foregoing considerations that the relevant public’s level of attention is average and that the signs at issue have only a low degree of visual, aural and conceptual similarity. The similarities between those signs are not particularly significant in the present case. They are restricted to the presence of the element ‘king’, which has a weak distinctive character, and are offset to a large extent by the presence of the elements ‘chipsy’ and ‘curry’. Furthermore, although the element ‘curry’ has a weak distinctive character for the products covered by the earlier mark and the element ‘chipsy’ may, for certain parts of the relevant public, also have a weak distinctive character for the goods and services at issue in the mark applied for, those elements introduce a distinction between the signs at issue, each taken as a whole. The circumstances of the present case are therefore such that the relevant public will clearly distinguish between those signs, even if they have a low degree of similarity due to the presence of the common element ‘king’ and even though some of the products and services at issue may be identical and the earlier mark may have an average distinctive character.

69 In the light of all of the foregoing, it must be held that the differences between the marks at issue are sufficient to prevent the similarities, which result from the fact that they have in common the element ‘king’, from leading to the risk that the relevant public might believe that the goods in question come from the same undertaking or from economically linked undertakings.

70 The Board of Appeal was therefore correct, in the present case, to find that there was no likelihood of confusion.

71 That conclusion cannot be called into question by the applicant’s argument that the judgments of 20 September 2011, TOFUKING (T‑99/10, not published, EU:T:2011:497), and of 13 December 2011, Schinken King (T‑61/09, not published, EU:T:2011:733), in which the Court found that there had been a likelihood of confusion, apply fully to the present case.

72 It is sufficient to note that the circumstances which gave rise to the judgments of 20 September 2011, TOFUKING (T‑99/10, not published, EU:T:2011:497), and of 13 December 2011, Schinken King (T‑61/09, not published, EU:T:2011:733), differ from those of the present case. In particular, while the Court found, inter alia, in the judgment of 13 December 2011, Schinken King (T‑61/09, not published, EU:T:2011:733, paragraph 58), that it was conceivable that the relevant public would regard the goods covered by the marks at issue as belonging to distinct ranges of products but coming, nevertheless, from the same undertaking, that is not the case here. The German term ‘schinken’ designates an edible part of an animal, while the term ‘tofu’ designates a soy-based food product, often regarded as a substitute for meat. Accordingly, as the Board of Appeal correctly observed in paragraph 67 of the contested decision, whereas consumers might assume, for example, that the mark TOFUKING refers to a vegan version of the curry sausages marketed by the applicant under the earlier mark Curry King, such a direct link with a product variation does not exist with regard to Chipsy Kings – the mark applied for – (see paragraphs 55 to 57 above), contrary to what the applicant claims.

73 In the light of all the foregoing considerations, the second plea in law must be rejected as unfounded.

The first plea in law, alleging infringement of Article 95(1) of Regulation 2017/1001

74 The applicant claims, in essence, that the Board of Appeal infringed Article 95(1) of Regulation 2017/1001 by confining its analysis to English in order to conclude that the word element ‘chipsy’ of the mark applied for was an invented word and by not taking account of the fact that the term ‘chipsy’ existed in Polish to designate chips and that it was therefore non-distinctive with regards to the goods and services covered by that mark.

76 According to Article 95(1) of Regulation 2017/1001, in proceedings before it, EUIPO is to examine the facts of its own motion. However, in proceedings relating to relative grounds for refusal of registration, its examination is restricted to the facts, evidence and arguments provided by the parties and the relief sought. It is apparent from the case-law that that article is a statement of the duty of diligence, under which the relevant institution is required to examine carefully and impartially all the relevant factual and legal aspects of the case in question (see judgment of 21 February 2013, Laboratoire Bioderma v OHIM – Cabinet Continental (BIODERMA), T‑427/11, not published, EU:T:2013:92, paragraph 24 and the case-law cited).

77 In the present case, it is sufficient to note that, while the Board of Appeal admittedly did not expressly raise the fact that the term ‘chipsy’ existed in Polish to designate ‘chips’, it is nevertheless true that it took account, in paragraphs 46 and 64 of the contested decision, of the fact that part of the relevant public may perceive the word element ‘chipsy’ as alluding to chips and correctly found that, even in that case, those consumers will be in a position to perceive the clear visual, aural and conceptual differences between the signs at issue and to not confuse them, even in respect of identical products.

78 In those circumstances, the first plea in law must be rejected as ineffective, and, accordingly, the action must be dismissed in its entirety.

79 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

80 Even though the applicant has been unsuccessful, EUIPO contended that it should be ordered to pay the costs only in the event that a hearing is convened. Since no hearing was held, each party must be ordered to bear its own costs.

2. Orders Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG and the European Union Intellectual Property Office (EUIPO) to bear their own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Meica v EUIPO - Lenard (CHIPSY KINGS) (EU trade mark - Judgment) [2024] EUECJ T-157/24 (11 December 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T15724.html Cite as: ECLI:EU:T:2024:891, [2024] EUECJ T-157/24, EU:T:2024:891

Court of Justice of the European Communities (including Court of First Instance Decisions)