JUDGMENT OF THE GENERAL COURT (Second Chamber)

19 November 2025 ( * )

( EU trade mark – Opposition proceedings – Application for an EU figurative mark representing a stylised shield with horizontal bars – International registration of the earlier figurative mark representing two extended wings around a rectangle – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 – Similarity of the signs at issue )

In Case T‑3/25,

Zündapp Verwaltungsgesellschaft mbH, established in Zossen (Germany), represented by M. Müller, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by D. Stoyanova-Valchanova, acting as Agent,

defendant,

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

Compagnie des Montres Longines, Francillon SA, established in Saint-Imier (Switzerland),

THE GENERAL COURT (Second Chamber),

composed, at the time of the deliberations, of A. Marcoulli (Rapporteur), President, J. Schwarcz and D. Jočienė, 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, Zündapp Verwaltungsgesellschaft mbH, seeks the annulment and alteration of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 16 October 2024 (Case R 262/2024-4) (‘the contested decision’).

Background to the dispute

2 On 16 May 2022, the applicant 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, inter alia, Class 14 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 to the following description: ‘Time instruments; Clocks; Wristwatches, Especially Watches for outdoor use, Wristwatches with GPS apparatus, Watches incorporating a telecommunication function, Clocks and watches, electric, Watches bearing insignia, Watches made of precious metals, Sports watches, Wristwatches with pedometers; Spare parts, for use in relation to the following goods: Time instruments, Clocks and watches; Accessories for timepieces, clocks and watches’.

4 On 3 October 2022, Compagnie des Montres Longines, Francillon SA 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 international registration designating the European Union No 1 174 907 of the following earlier figurative mark:

6 The earlier mark covered goods in Class 14 corresponding to the following description: ‘Precious metals and their alloys and goods made of these materials or coated therewith included in this class, namely figurines, trophies; jewelry, namely rings, earrings, cufflinks, bracelets, charms, brooches, chains, necklaces, tie pins, tie clips, jewelry caskets (cases), cases; precious stones, semi-precious stones; timepieces and chronometric instruments namely chronometers, chronographs, clocks, watches, wristwatches, wall clocks, alarm clocks as well as parts and accessories for the aforesaid goods namely hands, anchors, pendulums, barrels, watch cases, watch straps, watch dials, clockworks, watch chains, movements for timepieces, watch springs, watch glasses, presentation cases for timepieces, cases for timepieces’.

7 The grounds relied on in support of the opposition were those set out in Article 8(1)(b) and Article 8(5) 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).

8 On 2 December 2023, the Opposition Division upheld the opposition on the basis of Article 8(1)(b) of Regulation 2017/1001 on the ground that there was a likelihood of confusion. In reaching that conclusion, the Opposition Division took into account only the inherent distinctiveness of the earlier mark, which it considered to be normal, and, for reasons of procedural economy, did not examine whether, as Compagnie des Montres Longines, Francillon claimed, that mark had enhanced distinctiveness as a result of its use. For the same reasons, it did not examine the ground for refusal provided for in Article 8(5) of Regulation 2017/1001.

9 On 1 February 2024, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision.

10 By the contested decision, the Board of Appeal upheld the appeal on the ground that there was no likelihood of confusion under Article 8(1)(b) of Regulation 2017/1001, taking into account only the inherent distinctiveness of the earlier mark which it found, like the Opposition Division, to be normal. The Board of Appeal annulled the Opposition Division’s decision and remitted the case to the Opposition Division for it to examine, first, the alleged enhanced distinctiveness of the earlier mark as a result of its use and, as the case may be, the existence of a likelihood of confusion, taking into account such enhanced distinctiveness and, secondly, the ground for refusal provided for in Article 8(5) of that regulation.

Forms of order sought

11 The applicant claims that the Court should:

– annul the contested decision;

– alter the contested decision to the effect that the opposition is rejected;

– order EUIPO to pay the costs.

12 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

13 The applicant relies on two pleas in law, alleging, first, infringement of Article 8(1)(b) of Regulation 2017/1001 and, secondly, infringement of Article 8(5) of that regulation.

14 In support of the first plea alleging infringement of Article 8(1)(b) of Regulation 2017/1001, the applicant states that it disagrees with the Board of Appeal as regards the assessment of the level of attention of the relevant public, the distinctive and dominant elements of the signs at issue and the visual and conceptual similarity of those signs.

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. 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 The risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS) , T‑162/01, EU:T:2003:199, paragraphs 30 to 32 and the case-law cited).

17 As is apparent from recital 11 of Regulation 2017/1001, the assessment of the likelihood of confusion depends on numerous elements, in particular the public’s recognition of the trade mark on the market in question. The more distinctive the trade mark, the greater will be the likelihood of confusion, and therefore marks with a highly distinctive character, either per se or because of their recognition by the public, enjoy broader protection than marks with less distinctive character (see, by analogy, judgments of 11 November 1997, SABEL , C‑251/95, EU:C:1997:528, paragraph 24; of 29 September 1998, Canon , C‑39/97, EU:C:1998:442, paragraph 18; and of 22 June 1999, Lloyd Schuhfabrik Meyer , C‑342/97, EU:C:1999:323, paragraph 20).

The relevant public

18 In the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM – Altana Pharma (RESPICUR) , T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).

19 In the contested decision, the Board of Appeal found that the relevant public was that of all the Member States and that its level of attention varied from average to above average.

20 The applicant submits, in essence, that the level of attention of the relevant public will vary from above average to high. First, where the goods in question are expensive, the public pays particular attention. Secondly, even where those goods are not expensive, the public is more attentive than usual, because watches or other time-measuring instruments are used for purposes requiring technical precision or have a particular affective or aesthetic value.

21 EUIPO disputes the applicant’s arguments.

22 As regards the relevant territory, it must be borne in mind that, since the marks at issue designate the European Union, it is necessary to assess whether there is a likelihood of confusion from the point of view of the relevant public in all the Member States, as the Board of Appeal correctly found, without that finding being called into question by the applicant.

23 Regarding the level of attention of the relevant public, it is sufficient to note that, as recalled by the Board of Appeal in the contested decision, it is apparent from the case-law that, in relation to the goods in question, that is, in essence, watches and time-measuring instruments, the relevant public is composed of the general public and business consumers and that that public displays a level of attention that varies from average to above average (see, to that effect, judgment of 28 April 2021, Point Tec Products Electronic v EUIPO – Compagnie des Montres Longines, Francillon (Representation of two extended wings around a triangle) , T‑615/19, not published, EU:T:2021:224, paragraph 35 and the case-law cited).

24 The applicant’s argument that the relevant public displays a level of attention which is at least above average, taking into account technical, aesthetic or affective considerations, cannot be accepted. First, in certain situations, goods in the categories of watches or horological instruments may be purchased without consumers paying particular attention to them, in particular when they are ‘inexpensive’ goods (see, to that effect, judgment of 28 April 2021, Representation of two extended wings around a triangle , T‑615/19, not published, EU:T:2021:224, paragraph 35 and the case-law cited). In those situations, the relevant public will display an average level of attention in relation to the goods in question. Secondly, in any event, in order to take into account situations in which closer attention is paid to the goods when purchasing them, in particular on the basis of technical, functional, aesthetic or economic considerations, the Board of Appeal correctly found that the relevant public will display an above-average level of attention.

25 Consequently, the Board of Appeal did not make an error of assessment in finding that, overall, the relevant public will display a level of attention ranging from average to above average.

The comparison of the goods

26 In the contested decision, the Board of Appeal found that the goods covered by the signs at issue were identical. There is nothing in the file to call into question such a finding, which, moreover, is not disputed by the applicant.

The comparison of the signs

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

28 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 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).

29 In the contested decision, the Board of Appeal found, first of all, that there was ‘at most [a] low’ degree of visual similarity between the signs at issue having regard to their differences and similarities, next, that it was not possible to compare the signs phonetically and, lastly, that, for a non-negligible part of the relevant public, they had a below-average degree of conceptual similarity and that, for the other part of that public, they were conceptually dissimilar.

30 The applicant submits that there is no similarity between the signs at issue. Visually, it notes that, in addition to the various differences identified by the Board of Appeal, the marks at issue are distinguished by their horizontal linear components, which are joined in the earlier mark and separated in the mark applied for, by the proportions and position of their central elements and outer contours, by the overall graphic impression, thicker in the earlier mark and thinner in the mark applied for, by the type and style of each of the signs and, lastly, by the central graphic part of each of the marks, which creates the impression, in the earlier mark, of an hourglass and, in the mark applied for, of a shield. Conceptually, the applicant submits that the Board of Appeal’s finding that the signs at issue could be perceived as a military or aviation badge does not correspond, as regards the mark applied for, to any commonly known fact and is contradicted by the fact, which the Board of Appeal itself found, that nothing in that mark resembles extended wings.

31 EUIPO disputes the applicant’s arguments.

32 In the first place, it should be noted that, as the Board of Appeal correctly found in the contested decision, none of the elements making up the signs at issue dominates the relevant public’s perception of those signs. Furthermore, none of those elements will be overlooked by the relevant public. Consequently, the signs at issue must each be assessed as a whole.

33 In that regard, although the applicant states that it disagrees with the Board of Appeal as regards the assessment of the distinctive and dominant elements of the signs at issue, it does not put forward any argument to that effect. At most, it merely states, first, that, in the earlier mark, the central element is not an ‘indistinct geometric element’ and, secondly, that, in the mark applied for, the central element represents a ‘distinctive fanciful device’. It is sufficient to note that the Board of Appeal did not rule out that the central elements of the signs at issue were distinctive, but, on the contrary, compared those signs correctly by taking into account all their elements, namely their central elements in the foreground and their horizontal elements in the background.

34 In the second place, as regards the comparison of the signs at issue, at the outset, since those signs consist solely of figurative elements, the Board of Appeal was right to find that a phonetic comparison of those signs was not possible.

35 First, as regards the visual comparison, it is true, as the applicant points out and as the Board of Appeal also observed in the contested decision, that the signs at issue differ in their elements taken individually or in how the lines are drawn.

36 However, those signs also have a similar structure and composition, structured around a horizontal element in the background and a central element in the foreground, superimposed on the background element.

37 Thus, first of all, the elements making up each of the signs at issue occupy a space in the shape of a triangle, the longest side of which is situated in the upper part of the sign and the opposite peak of which is, as highlighted by the diagonal extremities of the horizontal elements in the background, directed towards the lower part of that sign.

38 Next, in both signs, the background element consists of symmetrical horizontal lines in relation to the centre of the sign, the length of which decreases towards the lower part of that sign, irrespective of whether those lines may evoke the extended bird wings in the earlier mark or the separate horizontal bars in the mark applied for.

39 Lastly, in both signs, the central element consists of an emblem superimposed on the background horizontal element, irrespective of the fact that that central element is rectangular and contains symmetrical lines capable of evoking an hourglass in the earlier mark, whereas the central element in the mark applied for is in the shape of a shield and its fanciful content is capable of evoking an abstract figure.

40 Accordingly, taking into account the fact that the average consumer only rarely has a chance to compare the various marks directly and must rely on his or her imperfect recollection of them (see judgment of 9 July 2003, GIORGIO BEVERLY HILLS , T‑162/01, EU:T:2003:199, paragraph 33 and the case-law cited), it cannot be entirely ruled out that there is a certain visual similarity between the signs at issue, which, as the Board of Appeal found in the contested decision, may be regarded as being at most low.

41 Secondly, as regards the conceptual comparison, it should be noted that a trade mark such as the earlier mark, having regard to the representation of extended bird wings with an emblem, may be perceived as evoking a badge, including a military badge, related to aviation (see, by analogy, judgment of 28 April 2021, Representation of two extended wings around a triangle , T‑615/19, not published, EU:T:2021:224, paragraph 52). Contrary to what is claimed by the applicant, the same is true of the mark applied for, since that mark, structured around a central shield placed over horizontal bars, is also likely to represent, for a non-negligible part of the relevant public, a badge related to aviation. Such a finding is independent of the perception of the content of the central elements of the signs at issue, to which the majority of the relevant public will not attribute any specific meaning. Furthermore, even assuming that part of the relevant public might perceive an hourglass in the earlier mark or an abstract figure in the mark applied for, such elements will not evoke concepts different from those conveyed by the other elements of the marks at issue, but will be perceived as mere decorations of the badges in question.

42 The Board of Appeal did not therefore make an error of assessment in finding that, for a non-negligible part of the relevant public, the signs at issue could be perceived as a ‘military or aviation badge’ and therefore had, for that part of the relevant public, a certain conceptual similarity, which may indeed be regarded as being below average.

The likelihood of confusion

43 In the contested decision, the Board of Appeal found that the earlier mark had a normal degree of inherent distinctiveness and that, given the interdependence of the relevant factors, the similarities between the signs were not sufficient to give rise to a likelihood of confusion. By contrast, it did not determine whether the earlier mark had enhanced distinctiveness as a result of its use and whether there could be a likelihood of confusion by taking into account such enhanced distinctiveness, but remitted the examination of that issue to the Opposition Division.

44 The applicant submits, in essence, that, since the signs at issue are different, one of the conditions laid down in Article 8(1)(b) of Regulation 2017/1001 for a finding of a likelihood of confusion is not satisfied, irrespective of the distinctiveness of the earlier mark.

45 EUIPO disputes the applicant’s arguments.

46 In that regard, it is sufficient to note that, as is apparent from paragraphs 40 and 42 above, there is some visual and conceptual similarity between the signs at issue, with the result that, contrary to what is claimed by the applicant, the Board of Appeal could not rule out the application of the ground for refusal provided for in Article 8(1)(b) of Regulation 2017/1001 on account of the lack of any similarity between those signs.

47 Accordingly, the first plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001, must be rejected.

48 Furthermore, in so far as, in the context of the second plea, the applicant also merely claims that there is no similarity between the signs at issue, it is sufficient to note that, since the Board of Appeal was right to find that there was some visual and conceptual similarity between the signs, it also could not rule out the application of the ground for refusal laid down in Article 8(5) of Regulation 2017/1001, the examination of which was remitted to the Opposition Division. Accordingly, the second plea, alleging infringement of that provision, must also be rejected.

49 In the light of all the foregoing considerations, since none of the pleas in law relied on by the applicant in support of the form of order sought are to be upheld, the action must be dismissed in its entirety, without there being any need to rule on the plea of inadmissibility raised by EUIPO in its response alleging that the applicant’s action seeks only to challenge certain grounds of the contested decision, while the decision upheld its claims. In the circumstances of the present case, the proper administration of justice justifies the dismissal of the action on the merits without a prior ruling on its admissibility (see, to that effect, judgment of 26 February 2002, Council v Boehringer , C‑23/00 P, EU:C:2002:118, paragraph 52).

Costs

50 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 (Second Chamber)

hereby:

1. Dismisses the action;

2. Orders Zündapp Verwaltungsgesellschaft mbH and the European Union Intellectual Property Office (EUIPO) each to bear their own costs.

Marcoulli

Schwarcz

Jočienė

Delivered in open court in Luxembourg on 19 November 2025.

V. Di Bucci

M. van der Woude

Registrar

President

* Language of the case: English.