EU-domstolen

ext/celex/62025TJ0229

CELEX: 62025TJ0229
Typ: EU-domstolen

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

14 January 2026 ( * )

( EU trade mark – Opposition proceedings – Application for EU figurative mark DESMOMED – Prior national word mark DERMOMED – Relative ground for refusal – No likelihood of confusion – No similarity between the goods at issue – Article 8(1)(b) of Regulation (EU) 2017/1001 )

In Case T‑229/25,

Ionfarma, SL, established in Barcelona (Spain), represented by T. González Martínez, lawyer,

applicant,

European Union Intellectual Property Office (EUIPO), represented by E. Lobotková and J. Ivanauskas, acting as Agents,

defendant,

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

Carmelo Manola, residing in Milan (Italy),

Irene Simeone, residing in Terranuova Bracciolini (Italy),

THE GENERAL COURT (Eighth Chamber),

composed of I. Gâlea, President, M.J. Costeira (Rapporteur) and T. Tóth, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

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

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, Ionfarma, SL, seeks the annulment and the alteration of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 10 February 2025 (Case R 1316/2024-1) (‘the contested decision’).

Background to the dispute

2 On 5 December 2022, the other parties to the proceedings before the Board of Appeal, Carmelo Manola and Irene Simeone, filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:

3 The mark applied for covered goods in Classes 3 and 5 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding, inter alia, for each of those classes, to the following description:

– Class 3: ‘Essential oils and aromatic extracts; Tailors’ and cobblers’ wax; fragrancing preparations; fragrancing preparations, other than for personal use; Animal grooming preparations; Toiletries’;

– Class 5: ‘Dietary supplements and dietetic preparations; Dental preparations and articles, and medicated dentifrices; Dental preparations and articles’.

4 On 9 March 2023, the applicant filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

5 The opposition was based on the earlier Spanish word mark DERMOMED, registered on 20 January 1988 under No M1135519, for goods in Class 5 corresponding to the following description: ‘Adhesive plasters, gauzes, bandages, dressings and cottons’.

6 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).

7 On 14 June 2024, the Opposition Division upheld the opposition in part. The opposition was upheld as regards the goods ‘dental preparations and articles’ in Class 5 covered by the mark applied for and was rejected for the following goods, which were found to be dissimilar to the goods covered by the earlier mark:

– Class 5: ‘Dietary supplements and dietetic preparations; medicated dentifrices’.

8 On 28 June 2024, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision in so far as it had partially rejected the opposition.

9 By the contested decision, the Board of Appeal dismissed the applicant’s appeal on the ground that the Opposition Division had been fully entitled to find that the goods at issue were dissimilar.

Forms of order sought

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

– annul the contested decision and reject the application for registration of the mark applied for;

– order EUIPO to pay the costs.

11 EUIPO contends that the Court should:

– dismiss the action;

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

Law

12 In support of the action, the applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001.

13 The applicant submits, in essence, that the Board of Appeal erred in finding that there was no likelihood of confusion, as regards the goods covered by the mark applied for which were found to be dissimilar to the goods covered by the earlier mark, which are referred to in paragraph 7 above.

14 EUIPO disputes the applicant’s arguments.

15 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.

16 According to settled case-law, 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. 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 26 June 2014, Basic v OHIM – Repsol YPF (basic) , T‑372/11, EU:T:2014:585, paragraph 21 and the case-law cited).

17 For the purpose of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 26 June 2014, basic , T‑372/11, EU:T:2014:585, paragraph 22 and the case-law cited).

18 It is in the light of those considerations that it is appropriate to examine whether, as the applicant claims, the Board of Appeal infringed Article 8(1)(b) of Regulation 2017/1001 in finding that there was no likelihood of confusion in the present case.

19 As a preliminary point, as regards the relevant public, first, the Board of Appeal noted that the goods in Class 3 targeted the public at large who pay an average level of attention and that the goods in Class 5 were directed at the public at large who display at least a higher-than-average level of attention and at professionals in the medical sector, such as doctors and pharmacists, who display a high level of attention. Second, the Board of Appeal stated that, since the goods in Class 5 targeted both the general public and specialists, the likelihood of confusion would be assessed from the perspective of the public displaying the lowest degree of attentiveness, namely the general public with an average degree of attentiveness. Third, the Board of Appeal stated that the relevant public was, in the light of the earlier mark, the Spanish public. In the light of the foregoing considerations, the Board of Appeal found that the likelihood of confusion had to be assessed in relation to the Spanish general public with an average degree of attentiveness.

20 There is no need to call into question those assessments by the Board of Appeal, which, moreover, have not been disputed by the applicant.

21 However, the applicant disputes the Board of Appeal’s findings relating to the comparison of the goods at issue and the likelihood of confusion. In particular, the applicant submits that the Board of Appeal erred in the comparison of the goods covered by the mark applied for which were found to be dissimilar to the goods covered by the earlier mark and in respect of which the opposition was rejected. In that regard, the applicant submits, in essence, that the Board of Appeal erred in finding that the nature, intended purpose and method of use of the goods in Classes 3 and 5 covered by the mark applied for were dissimilar to the goods in Class 5 covered by the earlier mark.

22 EUIPO disputes the applicant’s arguments.

23 As a preliminary point, it should be borne in mind that Article 33(7) of Regulation 2017/1001 provides that goods and services are not to be regarded as being similar to each other on the ground that they appear in the same class under the Nice Classification. Likewise, they are not to be regarded as being dissimilar from each other on the ground that they appear in different classes under the Nice Classification.

24 According to case-law, in assessing the similarity of the goods and services at issue, all the relevant factors relating to those goods and 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).

25 Complementary goods or services are those between which there is a close connection, in the sense that one is indispensable or important for the use of the other with the result that consumers may think that the same undertaking is responsible for manufacturing those goods or for providing those services (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel) , T‑316/07, EU:T:2009:14, paragraph 57 and the case-law cited).

The goods in Class 3 covered by the mark applied for

26 The applicant submits, in essence, that there is a low degree of similarity between the goods ‘Essential oils and aromatic extracts; Tailors’ and cobblers’ wax; fragrancing preparations; fragrancing preparations, other than for personal use; Animal grooming preparations; Toiletries’ covered by the mark applied for and the goods ‘Adhesive plasters, gauzes, bandages, dressings and cottons’ covered by the earlier mark. It argues that that similarity has been recognised by EUIPO in previous decisions.

27 EUIPO disputes the applicant’s arguments.

28 It should be noted at the outset that the applicant’s line of argument is limited to the reproduction of certain passages of previous decisions of the Opposition Division of EUIPO. As EUIPO submits and as the applicant acknowledges in its written pleadings, the decisions concerning registration of a sign as an EU trade mark which the Boards of Appeal take under Regulation 2017/1001 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of those decisions must be assessed solely on the basis of that regulation, as interpreted by the EU judicature, and not on the basis of a previous decision-making practice (see, to that effect, judgment of 26 April 2007, Alcon v OHIM , C‑412/05 P, EU:C:2007:252, paragraph 65). Furthermore, the Board of Appeal is not bound by the decisions of a lower adjudicating body (see judgment of 29 January 2025, Desimo v EUIPO – Dulces y conservas Helios (ELIOS) , T‑607/23, not published, EU:T:2025:112, paragraph 51 and the case-law cited).

29 It should also be noted that the applicant, in its written pleadings, does not explain how the reasoning followed in those decisions of the Opposition Division can be applied to the present case. It does not specify the reasons why those decisions are such as to cast doubt on the elements on which the Board of Appeal based its finding, such as the intended purpose, nature and method of use of the goods referred to in paragraph 26 above, or their lack of complementarity or competition. The applicant does not put forward any argument in that regard. Moreover, the passages cited from those decisions concern goods which are different from those at issue in the present case.

30 Furthermore, the claims at issue are too vague to enable the Court to identify any error of assessment on the part of the Board of Appeal. Therefore, they cannot, on their own, suffice to call into question the Board of Appeal’s finding that the goods ‘Essential oils and aromatic extracts; Tailors’ and cobblers’ wax; fragrancing preparations; fragrancing preparations, other than for personal use; Animal grooming preparations; Toiletries’ in Class 3 covered by the mark applied for were dissimilar to the goods ‘Adhesive plasters, gauzes, bandages, dressings and cottons’ in Class 5 covered by the earlier mark.

31 In particular, as the Board of Appeal correctly noted, the goods referred to in paragraph 26 above differed not only in their nature and purpose, but also in their commercial origin. In that regard, the Board of Appeal was correct in finding that the goods covered by the earlier mark, which consisted of plasters and materials for dressings, intended to support the healing process of a wound or an injury, clearly differed, by their nature, intended purpose and method of use, from the goods covered by the mark applied for, which were goods for perfuming the body or an environment, personal hygiene, animal grooming and the care of textiles or footwear, respectively. Those goods are generally used to take care of and beautify the human body, a room, an animal or a garment.

32 Accordingly, the Board of Appeal also correctly noted that the public would not expect that such distant types of goods would come from the same commercial undertaking or from economically linked undertakings.

33 It follows from the foregoing that the Board of Appeal did not err in finding that the goods referred to in paragraph 26 above were dissimilar.

The goods in Class 5 covered by the mark applied for

34 The applicant submits, in essence, that the goods ‘Dietary supplements and dietetic preparations; medicated dentifrices’ covered by the mark applied for are, at the very least, similar to a low degree to the goods ‘Adhesive plasters, gauzes, bandages, dressings and cottons’ covered by the earlier mark. According to the applicant, those goods are all pharmaceutical or medicinal in nature, come from the same pharmaceutical companies and laboratories and have the same distribution channels.

35 EUIPO disputes the applicant’s arguments.

36 The Board of Appeal found, in essence, in paragraphs 50 to 55 of the contested decision, that the goods ‘Dietary supplements and dietetic preparations; medicated dentifrices’ in Class 5 covered by the mark applied for were dissimilar to the goods ‘Adhesive plasters, gauzes, bandages, dressings and cottons’, also in Class 5, covered by the earlier mark. In particular, it found that those goods differed in their nature, intended purpose and method of use. It also found that those goods were not complementary.

37 Contrary to what the applicant claims, those findings of the Board of Appeal must be upheld.

38 First of all, the goods referred to in paragraph 34 above were all included in Class 5 of the Nice Classification.

39 In that regard, it must be borne in mind that the heading of Class 5 of the Nice Classification in force at the time when the application for registration of the mark applied for was filed, namely the eleventh edition, was worded as follows: ‘Pharmaceuticals, medical and veterinary preparations; sanitary preparations for medical purposes; dietetic food and substances adapted for medical or veterinary use, food for babies; dietary supplements for human beings and animals; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides’.

40 It is clear from the heading at issue, taking into account the semi-colons separating those various indications, that ‘pharmaceuticals’, ‘dietary supplements’ and ‘plasters, materials for dressings’ constituted distinct categories of goods. A semi-colon establishes a distinction between two different categories falling within the same class (judgment of 15 May 2014, Louis Vuitton Malletier v OHIM , C‑97/12 P, not published, EU:C:2014:324, paragraph 96), unlike commas which serve to separate items within the same category of goods (judgment of 21 November 2018, PepsiCo v EUIPO – Intersnack Group (Exxtra Deep) , T‑82/17, EU:T:2018:814, paragraph 48).

41 It follows that, in accordance with the general indications making up the heading at issue and contrary to what the applicant appears to claim in its written pleadings, the goods referred to in paragraph 34 above did not fall within the same category of goods within that class. The goods covered by the earlier mark fell clearly within the category of ‘plasters, materials for dressings’, whereas the goods ‘dietary supplements and dietetic preparations’ covered by the mark applied for fell clearly within the category of ‘dietary supplements for human beings and animals’ and the goods ‘medicated dentifrices’ fell, as the applicant stated in its written pleadings, within the category of ‘pharmaceuticals, medical and veterinary preparations’.

42 Next, as stated in paragraph 31 above, the goods covered by the earlier mark are intended to support the healing process of a wound or an injury. The goods ‘dietary supplements’ covered by the mark applied for are intended to supplement daily foodstuffs in order to maintain overall health or to improve the results of diets with a specific purpose (see, to that effect, judgment of 30 November 2022, Hasco TM v EUIPO – Esi (NATURCAPS) , T‑12/22, not published, EU:T:2022:733, paragraph 32). The same applies to the goods ‘dietetic preparations’. Last, the goods ‘medicated dentifrices’ covered by the mark applied for are intended for the treatment or prevention of dental or oral health issues.

43 Last, the goods referred to in paragraph 34 above are clearly neither complementary nor in competition with each other. They are not indispensable or important for the use of the other, with the result that the consumer will not think that the same undertaking is responsible for manufacturing those goods. Moreover, they are not interchangeable or substitutable. It is clear that the goods covered by the earlier mark cannot be replaced by the goods covered by the mark applied for, given that those goods do not have the same purpose and do not meet the same consumer needs.

44 It follows that, although it is true that the goods referred to in paragraph 34 above are all, more or less, related to human health and that they are aimed, in general, at the same consumers, healthcare professionals and the general public, the fact remains that they differ in their nature, intended purpose and method of use and that they are neither complementary nor in competition with each other.

45 Consequently, there is no reason to take the view that the consumer will expect the goods referred to in paragraph 34 above, which are dissimilar, to come from the same undertakings. Moreover, the applicant has not sufficiently substantiated its claim that those goods could come from the same pharmaceutical companies or laboratories.

46 Last, the fact that the goods referred to in paragraph 34 above have the same distribution channels cannot, in itself, suffice to establish similarity between those goods, having regard in particular to their different nature, intended purpose and method of use.

47 Consequently, the Board of Appeal was correct in finding that the goods referred to in paragraph 34 above were dissimilar.

48 It is apparent from the foregoing that the Board of Appeal did not err in finding that the goods at issue were dissimilar.

49 In those circumstances, since one of the conditions necessary for a finding of a likelihood of confusion under Article 8(1)(b) of Regulation 2017/1001, namely the similarity of the goods at issue, has not been satisfied in relation to those goods, the Board of Appeal did not err in finding that, for those goods, there was no likelihood of confusion between the mark applied for and the earlier mark.

50 It follows that the single plea in law must be rejected, without it being necessary to examine the applicant’s other complaints, and, consequently, the action must be dismissed in its entirety.

Costs

51 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.

52 Although the applicant has been unsuccessful, EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened. Since no hearing was held, it is appropriate to order each party to bear its own costs.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1. Dismisses the action;

2. Orders Ionfarma, SL, and the European Union Intellectual Property Office (EUIPO) each to bear their own costs.

Gâlea | Costeira | Tóth

Delivered in open court in Luxembourg on 14 January 2026.

V. Di Bucci | S. Papasavvas

Registrar | President

* Language of the case: English.