Golden Support v EUIPO - Sky International (Skyliner) (EU trade mark - Judgment) [2024] EUECJ T-78/24 (13 November 2024)

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( EU trade mark - Invalidity proceedings - EU word mark Skyliner - Earlier EU figurative mark SKY - Relative ground for invalidity - Likelihood of confusion - Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 (now Article 8(1)(b) and Article 60(1)(a) of Regulation (EU) 2017/1001) )

Golden Support s. r. o., established in Prague (Czech Republic), represented by P. Cink, lawyer,

European Union Intellectual Property Office (EUIPO), represented by T. Frydendahl, acting as Agent,

composed, at the time of the deliberations, of M. Brkan, acting as President, I. Gâlea (Rapporteur) and S. L. Kalėda, 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, Golden Support s. r. o., seeks the annulment and the alteration of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 14 December 2023 (Case R 421/2023-4) (‘the contested decision’).

2 On 24 August 2021, Sky International AG filed with EUIPO an application for a declaration of invalidity of the EU trade mark which had been registered following an application filed on 30 August 2017 by the applicant for the word sign Skyliner.

3 The services covered by the contested mark in respect of which a declaration of invalidity was sought were in Classes 38 and 42 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 corresponded, for each of those classes, to the following description:

– Class 38: ‘Telecommunications consultancy; Telecommunication services; Interactive telecommunications services; Communication services by satellite; Air to ground telecommunications services; Provision of broadband telecommunications access; Transfer of data by telecommunications; Telecommunications services for aircraft passengers; Internet based telecommunication services; Providing access to telecommunication networks; Data transmission services over telecommunications networks; Providing telecommunications connections to the Internet; Digital network telecommunications services; Digital transmission of data’;

– Class 42: ‘Telecommunications engineering; Programming of telecommunications software; Testing of telecommunication signals; Analysis of telecommunication signals; Monitoring of telecommunication signals; Design and development of telecommunications networks; Telecommunications technology consultancy; Research relating to telecommunication techniques; Computer programming for telecommunications; Programming of software for information platforms on the Internet; Programming of operating software for computer networks and servers; Software design and development; Styling [industrial design]; Design of web pages; Maintenance of websites; Programming of web pages; Development of computer software application solutions; Technical consultancy relating to the application and use of computer software; Design of information systems; Computer security consultancy; Information services relating to the development of computer systems; Consultancy services for analysing information systems; Consultancy services for designing information systems; Information services relating to the application of computer systems’.

4 The application for a declaration of invalidity was based, inter alia, on the EU figurative mark registered under No 14897789, covering, inter alia, ‘telecommunications’ services in Class 38 and ‘scientific and technological services and research and design relating thereto; design and development of computer hardware and software; computer programming; computer software consultancy; creating and maintaining web sites for others; engineering; information technology [IT] consulting services; styling [industrial design]; computer services for retrieving information, messages, text sound, images and data via a computer network, computer services for relating to radio and television programmes, computer services; testing, research, assessing, consultancy, advising or providing information in relation to the foregoing; consultancy, information and advisory services relating to all the aforesaid services’ in Class 42 and represented below:

5 The ground relied on, inter alia, in support of the application for a declaration of invalidity was that set out in Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by 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)), and, in particular, in Article 53(1)(a) of Regulation No 207/2009 (now Article 60(1)(a) of Regulation 2017/1001), read in conjunction with Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).

6 On 21 December 2022, the Cancellation Division upheld the application for a declaration of invalidity of the contested mark in its entirety and declared that mark invalid.

7 On 20 February 2023, the applicant filed a notice of appeal with EUIPO against the decision of the Cancellation Division, requesting that that decision be annulled in its entirety.

8 By the contested decision, the Board of Appeal dismissed the appeal. It found that the services covered by the marks at issue were identical or at least very similar, that the comparison of the signs at issue led to an average degree of visual, phonetic and conceptual similarity and that the earlier mark had an average degree of inherent distinctiveness. It therefore concluded that there was a likelihood of confusion between the signs at issue.

9 The applicant claims that the Court should reject the application for a declaration of invalidity of the contested mark.

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

11 As a preliminary point, it should be noted that, given the date on which the application for registration of the contested mark was filed, namely 30 August 2017, which is decisive for the purposes of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, order of 5 October 2004, Alcon v OHIM, C‑192/03 P, EU:C:2004:587, paragraphs 39 and 40, and judgment of 23 April 2020, Gugler France v Gugler and EUIPO, C‑736/18 P, not published, EU:C:2020:308, paragraph 3 and the case-law cited). Moreover, in so far as, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the present dispute is governed by the procedural provisions of Regulation 2017/1001.

12 Under Article 72(3) of Regulation 2017/1001, the Court has jurisdiction to annul or to alter the contested decision. It should be pointed out, however, that the annulment of all or part of a decision constitutes a necessary prerequisite in order to allow an alteration of that decision. Therefore, an application for alteration cannot be granted in the absence of a claim for annulment (see, to that effect, judgment of 30 November 2006, Camper v OHIM – JC (BROTHERS by CAMPER), T‑43/05, not published, EU:T:2006:370, paragraph 99).

13 In the present case, as EUIPO submits, it must be held that, although, by its single head of claim, the applicant merely seeks the alteration of the contested decision, in the light of the content of the application, that head of claim must be interpreted as including a claim for annulment (see, to that effect and by analogy, judgment of 27 February 2014, Advance Magazine Publishers v OHIM – Nanso Group (TEEN VOGUE), T‑509/12, EU:T:2014:89, paragraphs 15 and 16 and the case-law cited).

14 In support of its action, the applicant relies, in essence, on two pleas in law, alleging, first, infringement of Article 8(1)(b) of Regulation No 207/2009 and, secondly, infringement of Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

1. The first plea: infringement of Article 8(1)(b) of Regulation No 207/2009

15 The applicant claims, in essence, that the Board of Appeal erred in finding that there was a likelihood of confusion on the part of the relevant public. It submits that the similarities between the marks at issue must be assessed globally and that the visual, phonetic and conceptual differences are sufficiently significant to rule out any likelihood of confusion and association on the part of that public. The applicant submits that those marks cover services falling under different areas.

17 Pursuant to Article 53(1)(a) of Regulation No 207/2009, read in conjunction with Article 8(1)(b) of that regulation, upon application by the proprietor of an earlier mark, an EU trade mark is to be declared invalid if, because of its identity with, or similarity to, the earlier mark and the identity or similarity of the goods or services covered by the marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier mark is protected. The likelihood of confusion includes the likelihood of association with the earlier mark.

18 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 that 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 signs at issue and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).

19 For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).

20 In the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods or services 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).

21 The applicant’s arguments must be assessed in the light of those considerations.

22 It is apparent from paragraphs 18 to 20 of the contested decision that the Board of Appeal found that the relevant public consisted of the general public and the professional public, which displayed a degree of attention which varied from average to higher than average. It found that it was necessary to take into consideration the English-speaking part of that public in order to assess the likelihood of confusion. The applicant does not dispute that assessment.

23 The applicant submits that the proprietors of the marks at issue offer different areas of telecommunications services and that that excludes any possibility of confusion. The services for which Sky International has registered its marks include almost all those in Classes 38 and 42, so that it is impossible not to include some of the services for which the contested mark was registered. However, Sky International and the applicant offer different categories of telecommunications services.

25 It should be noted that the Board of Appeal found, in paragraph 22 of the contested decision, that the services covered by the contested mark were identical or at least highly similar to the services covered by the earlier mark.

26 In the first place, it must be stated, as observed by EUIPO, that, by its arguments, the applicant does not call into question the finding in paragraph 25 above. It refers to the actual use of the marks at issue in relation to those services.

27 In that regard, it should be noted that, according to the case-law, for the purposes of assessing the likelihood of confusion, in invalidity proceedings based on Article 53(1)(a) of Regulation No 207/2009, read in conjunction with Article 8(1)(b) of that regulation, such as that in the present case, EUIPO may take into account only the list of goods or services applied for as set out in the trade mark application concerned, subject to any amendments thereto (see judgment of 6 December 2023, Vi.ni.ca. v EUIPO – Venica & Venica (agricolavinica. Le Colline di Ripa), T‑627/22, not published, EU:T:2023:782, paragraph 25 and the case-law cited). Consequently, the applicant’s claims relating to the different areas of services for which it intends to use the contested mark are irrelevant in the present case and must be rejected as ineffective.

28 In the second place, the applicant’s arguments alleging that the earlier mark is registered for almost all the services in Classes 38 and 42 must also be rejected as ineffective. As the Board of Appeal correctly pointed out, since the earlier mark is not under the proof of use requirement, the comparison of the services at issue must be made by reference to the services in respect of which the marks at issue are registered and not to those in respect of which the marks have actually been used (see, to that effect, order of 30 June 2010, Royal Appliance International v OHIM, C‑448/09 P, not published, EU:C:2010:384, paragraph 74).

29 It is apparent from the case-law that the global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global appreciation of that likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).

30 The assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components of the mark are negligible in the overall impression created by that mark (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).

31 It must be pointed out that, where a trade mark is composed of word and figurative elements, the former should, in principle, be considered more distinctive than the latter, because the average consumer will more easily refer to the goods in question by quoting the name of that mark than by describing the figurative element (judgment of 14 July 2005, Wassen International v OHIM – Stroschein Gesundkost (SELENIUM-ACE), T‑312/03, EU:T:2005:289, paragraph 37).

32 The applicant’s arguments must be assessed in the light of those considerations.

33 In paragraph 27 of the contested decision, the Board of Appeal found that, although the element ‘skyliner’ has no meaning for the English-speaking public, that public would break it down into the elements ‘sky’ and ‘liner’. It found that, visually, the sole word element ‘sky’ of the earlier mark was fully contained in the contested mark, in which the initial word element ‘sky’ will be perceived as a distinctive, divisible part. As regards the element ‘liner’ of the contested mark, it found that it had no counterpart in the earlier mark. It concluded, in paragraph 29 of the contested decision, that the marks at issue had an average degree of visual similarity.

34 The applicant submits that, visually, the marks at issue have a clearly different structure and length. In that regard, it submits that the earlier mark consists only of a word element whereas the contested mark is composed of two word elements. It adds that the contested mark is not based on the word ‘sky’, but on the word ‘skyline’, which has a totally different meaning from the words ‘sky’ and ‘liner’. The applicant adds that the visual impression produced by the signs at issue is different, given that the earlier sign contains figurative elements. According to the applicant, the relevant public will perceive the two syllables together and will never use the word ‘sky’ alone to refer to the contested mark. It claims that the contested mark is distinctive and the visual differences between the two signs at issue make it possible to rule out any likelihood of confusion.

36 It must be recalled that, as regards the visual comparison of two signs, there is nothing preventing 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 26 September 2014, Koscher + Würtz v OHIM – Kirchner the Wilhelm (KW SURGICAL INSTRUMENTS), T‑445/12, EU:T:2014:829, paragraph 51 and the case-law cited).

37 In the present case, it should be noted, in the first place, that the earlier mark is a figurative mark composed of the word element ‘sky’, in a slightly stylised font, in yellow, orange, red, pink, violet and blue. By contrast, the contested mark is a word mark, composed of the word element ‘skyliner’. In the second place, the identity between the two marks at issue is based on the element ‘sky’, which is placed first in those two marks. They differ on account of the presence, in the second position of the contested mark, of the element ‘liner’.

38 It must be stated, first, that the figurative element of the earlier mark simply illustrates the word element of that mark. Accordingly, it must be noted, as observed by the Board of Appeal, that the figurative element of that mark is merely decorative. Having regard also to the case-law referred to in paragraph 31 above, it must be held that that figurative element plays an ancillary and negligible role in relation to the word element of that mark.

39 Secondly, the contested mark is characterised by the addition of ‘liner’, placed in second position in relation to ‘sky’, common to both marks at issue and located in the first part of the contested mark. It is plausible that the consumer will first perceive the initial part ‘sky’.

40 In the light of the foregoing considerations, the Board of Appeal did not make an error of assessment in finding that the marks at issue were visually similar to an average degree.

41 As to the phonetic aspect, in paragraph 30 of the contested decision, the Board of Appeal noted that, although the earlier mark contains one syllable, ‘sky’, and the contested mark consists of three, ‘sky’, ‘li’ and ‘ner’, those marks coincided in the element ‘sky’, placed in first position, on which consumers would tend to focus, and differed in the second and third syllables of the contested mark, which had no counterpart in the earlier mark. It concluded that the signs at issue were phonetically similar to an average degree.

42 As regards the phonetic comparison of the marks at issue, the applicant submits that since those marks have a different number of syllables, they therefore have a completely different pronunciation.

43 EUIPO does not put forward any arguments with regard to the phonetic similarity.

44 It should be recalled that the fact that the number of syllables of the signs at issue is different is not sufficient to dispel the similarity between the marks in question, which must be assessed on the basis of the overall impression produced by their full pronunciation (see, to that effect, judgments of 28 October 2010, Farmeco v OHIM – Allergan (BOTUMAX), T‑131/09, not published, EU:T:2010:458, paragraph 39 and the case-law cited, and of 13 June 2012, XXXLutz Marken v OHIM – Meyer Manufacturing (CIRCON), T‑542/10, not published, EU:T:2012:294, paragraph 50).

45 In the present case, first, the fact that the word element ‘sky’, which constitutes the earlier mark, appears in the contested mark constitutes an indication of a certain phonetic similarity (see, to that effect, judgment of 8 February 2019, Serendipity and Others v EUIPO – CKL Holdings (CHIARA FERRAGNI), T‑647/17, not published, EU:T:2019:73, paragraph 59).

46 Secondly, it must be held that, even though the signs at issue have a distinct syllabic structure in so far as they contain a different number of syllables, the Board of Appeal was right in finding that they were phonetically similar since the element ‘sky’, which was the only syllable of the earlier mark and the initial syllable of the contested mark, was included in those two marks (see, to that effect, judgment of 24 October 2019, ZPC Flis v EUIPO – Aldi Einkauf (FLIS Happy Moreno choco), T‑708/18, not published, EU:T:2019:762, paragraph 106 and the case-law cited).

47 Thirdly, although the signs at issue are of a different length, the overall impression which they produce leads to the finding that there is a phonetic similarity between them owing to their common component (see, to that effect, judgment of 1 July 2009, Perfetti Van Melle v OHIM – Cloetta Fazer (CENTER SHOCK), T‑16/08, not published, EU:T:2009:240, paragraph 43).

48 Consequently, the Board of Appeal did not make an error of assessment in finding that the signs at issue are phonetically similar to an average degree.

49 The Board of Appeal found that the contested mark had no concrete meaning for English-speaking consumers and that they would perceive that mark as the conjunction of the words ‘sky’ and ‘liner’. It concluded that the signs were conceptually similar to an average degree in so far as they shared the concept conveyed by the word ‘sky’.

50 The applicant submits that the marks at issue are conceptually different, since the term ‘skyliner’ is not based on the word ‘sky’, but on the word ‘skyline’, which has a completely different meaning. According to the applicant, that conceptual difference is clear to the relevant public.

52 In the present case, it should be noted that, as the Board of Appeal stated in paragraph 26 of the contested decision, for the relevant English-speaking public, the word ‘sky’ means ‘the apparently dome-shaped expanse extending upwards from the horizon that is characteristically blue or grey during the day, red in the evening, and black at night’ or the ‘outer space, as seen from the earth’. By contrast, as is apparent from paragraphs 27 and 31 of the contested decision, the word ‘skyliner’ has no meaning for the relevant public.

53 The applicant’s argument that the contested mark is based on the term ‘skyline’, meaning ‘horizon’, to which it merely added the letter ‘r’, cannot succeed, since the comparison must be made between the earlier mark and the contested mark, as it was registered.

54 Consequently, in so far as the marks at issue coincide in the word element ‘sky’ of the earlier mark, which also constitutes the initial part of the contested mark, and the meaning of which the public will perceive, it must be concluded that there is a conceptual similarity between the marks at issue. Contrary to the applicant’s claims, the addition of the word ‘liner’ in the contested mark cannot alter that conclusion.

55 Consequently, it must be held that, as the Board of Appeal correctly pointed out in paragraph 31 of the contested decision, there is an average degree of conceptual similarity between the marks at issue.

56 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 concerned. Accordingly, a lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).

57 In paragraphs 39 to 42 of the contested decision, the Board of Appeal found that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009, taking into account the identity or high degree of similarity between the services at issue, the average degree of visual, phonetic and conceptual similarity between the signs at issue and the normal degree of inherent distinctiveness of the earlier mark.

58 The applicant disputes the existence of a likelihood of confusion on the part of the relevant public, reiterating the arguments raised to challenge the visual, phonetic and conceptual similarities. It also considers that the contested mark has enhanced distinctiveness.

60 In the present case, in the first place, as regards the similarity of the signs at issue, it must be recalled that, as stated in paragraphs 40, 48 and 54 above, those signs are visually, phonetically and conceptually similar to an average degree.

61 In the second place, first, as regards the distinctive character of the earlier mark, it is not disputed by the parties that that distinctive character must be regarded as normal in the absence of any meaning of that mark for the services in Classes 38 and 42, as the Board of Appeal found in paragraph 39 of the contested decision.

62 Secondly, as regards the applicant’s argument relating to the alleged enhanced distinctiveness of the contested mark, it is sufficient to note that the Board of Appeal was right to point out, in paragraph 42 of the contested decision, that the likelihood of confusion required an examination of the scope of protection of the earlier mark and not of that of the contested mark, as is apparent from the case-law (see, to that effect, judgment of 28 June 2012, I Marchi Italiani and Basile v OHIM – Osra (B. Antonio Basile 1952), T‑133/09, EU:T:2012:327, paragraph 67 and the case-law cited). The Board of Appeal was therefore right in finding that the alleged enhanced distinctiveness of the contested mark was irrelevant in the present case.

63 In the third place, as is apparent from paragraph 25 above, the Board of Appeal found, without being challenged on that point by the applicant, that the services for which the marks at issue had been registered were partially identical and partially at least very similar. The applicant submits that, even though the marks at issue both concern telecommunications services, they offer different categories of those services in the present case.

64 In that regard, it should be noted that, for the purposes of assessing the existence of a likelihood of confusion, only the description of the goods for which registration of the mark has been requested is relevant; the use, actual or intended, of that mark cannot be taken into account, as long as the registration does not contain a limitation in that sense. It follows that the specific use which the proprietor of the contested mark has made of its sign is not capable of changing the goods or services taken into account for the purposes of the assessments underlying the finding of the existence of a likelihood of confusion, such as the definition of the relevant public and its level of attention or the similarity between those goods or services on the part of that public (see, to that effect, order of 30 June 2010, Royal Appliance International v OHIM, C‑448/09 P, not published, EU:C:2010:384, paragraphs 71 and 72).

65 In the fourth place, as regards the applicant’s argument that the Board of Appeal based its findings on the fact that the name of the contested mark would be perceived as consisting of two distinct components ‘sky’ and ‘liner’, it follows from the case-law that, despite the fact that the similarity of the signs at issue should as a matter of course be assessed on the basis of the overall impression given by those signs without engaging in an analysis of their various details, the relevant public will break a word sign down into word elements which, for it, suggest a specific meaning or which resemble words known to it (see judgment of 13 February 2007, RESPICUR, T‑256/04, EU:T:2007:46, paragraph 57 and the case-law cited).

66 In the present case, it is apparent from paragraph 27 of the contested decision that the contested mark was broken down into two elements solely for the purposes of analysing the perception of that mark by the relevant public, with the aim of identifying, in accordance with the case-law referred to in paragraph 65 above, word elements which, for that public, suggest a concrete meaning or which resemble words known to it. The fact remains that the Board of Appeal compared the signs at issue by taking due account of the overall impression given by those signs to the relevant public. Accordingly, the applicant’s argument cannot succeed.

67 Thus, it must be concluded that, in the light of the visual, phonetic and conceptual similarity of the signs at issue, the identity or high degree of similarity of the services at issue, and the normal distinctive character of the earlier mark, the Board of Appeal did not make an error of assessment in finding that there was a likelihood of confusion.

2. Second plea in law, alleging infringement of Article 16 of the Charter

68 The applicant complains that the Board of Appeal infringed Article 16 of the Charter by basing the declaration of invalidity of the contested mark on the finding that there was too low a degree of similarity between the marks at issue.

70 In the present case, it should be noted that the applicant’s arguments concerning the alleged infringement of Article 16 of the Charter are based on the premiss that the Board of Appeal declared the contested mark invalid, whereas it found only that there was too low a degree of similarity with the earlier mark. The Board of Appeal correctly stated, as is apparent from paragraphs 40, 48 and 54 above, that the signs at issue were visually, phonetically and conceptually similar to an average degree.

72 In the light of all of the foregoing considerations, since none of the arguments relied on by the applicant in support of its claims must be upheld, the action must be dismissed in its entirety, without it being necessary to rule on the admissibility of the application for alteration contained in the applicant’s head of claim.

73 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.

74 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 Golden Support s. r. o. and the European Union Intellectual Property Office (EUIPO) to each 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) >> Golden Support v EUIPO - Sky International (Skyliner) (EU trade mark - Judgment) [2024] EUECJ T-78/24 (13 November 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T7824.html Cite as: [2024] EUECJ T-78/24, ECLI:EU:T:2024:803, EU:T:2024:803

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