JUDGMENT OF THE GENERAL COURT (First Chamber)

14 May 2025 (*)

( EU trade mark – Opposition proceedings – Application for EU figurative mark It’s B – Earlier national figurative mark B! – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )

In Case T‑283/24,

Sumol + Compal Marcas S. A., established in Carnaxide (Portugal), represented by R. Milhões, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by A. Ringelhann, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Bosca Cora SpA, established in Canelli (Italy), represented by M. Baccarelli, lawyer,

THE GENERAL COURT (First Chamber),

composed of R. Mastroianni, President, M. Brkan (Rapporteur) and I. Gâlea, 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, Sumol + Compal Marcas S. A., seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 March 2024 (Case R 940/2023‑4) (‘the contested decision’).

 Background to the dispute

2        On 16 July 2021, the intervener, Bosca Cora SpA, filed with EUIPO an application for registration of an EU trade mark for the following figurative sign:

3        The mark applied for covered goods in Classes 32 and 33 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 corresponding, for each of those classes, to the following description:

–        Class 32: ‘Soft drinks; fizzy non-alcoholic drinks; fermented malt-based beverages containing natural flavourings; non-alcoholic, malt-based beverages; non-alcoholic beverages flavoured with natural flavourings; non-alcoholic beverages flavoured with tea’;

–        Class 33: ‘Wine; sparkling wines; wine-based drinks: wine-based mixed beverages; alcoholic beverages; flavoured brewed malt beverages; alcoholic beverages based on brewed malt and natural flavourings; alcoholic beverages flavoured with natural flavourings; alcoholic tea-based beverages’.

4        On 9 November 2021, 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 following earlier Portuguese figurative mark No 597 678:

6        The goods covered by the earlier mark were in Classes 30 and 32 and corresponded, for each of those classes, to the following description:

–        Class 30: ‘Chocolate, cocoa, coffee, tea, coffee substitutes and other cereal-based drinks’;

–        Class 32: ‘Soft drinks; carbonated drinks; lemonades; granulated drinks; energy drinks and sports drinks (sports drinks); fruit and/or vegetable drinks and fruit and/or vegetable juices, fruit flavoured drinks, fruit and/or vegetable juice carbonated drinks; flat or sparkling water (mineral or non-mineral), spring waters, carbonated waters, flavoured waters, water-based drinks with tea extracts, coconut water (drink), tonic water, water-based functional drinks, lemon barley water, orange barley water, beer and other non-alcoholic beverages; syrups for beverages, concentrates, powders and other preparations for the manufacture of beverages’.

7        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).

8        On 31 March 2023, the Opposition Division upheld the opposition in respect of all the goods at issue, on the ground that there was a likelihood of confusion, including a likelihood of association, on the part of the English-speaking part of the relevant public. It found that, on account of the letter ‘b’ common to the marks at issue, the similarities were not counterbalanced by any specific meaning that would help the consumers to distinguish between the marks.

9        On 4 May 2023, the intervener filed a notice of appeal with EUIPO against the decision of the Opposition Division.

10      By the contested decision, the Board of Appeal upheld the appeal and rejected the opposition in its entirety. It found, in essence, that the presence of the same letter of the alphabet, namely the letter ‘b’, which in itself is weakly distinctive, in the signs at issue was not sufficient to outweigh the striking visual and phonetic differences between those signs. Consequently, it concluded that there was no likelihood of confusion, even where the goods at issue are identical.

 Forms of order sought

11      The applicant claims that the Court should:

–        annul the contested decision;

–        uphold the Opposition Division’s decision;

–        order EUIPO and the intervener to pay the costs.

12      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs if an oral hearing is convened.

13      The intervener contends that the Court should:

–        dismiss the action;

–        uphold the contested decision;

–        order the applicant to pay the costs.

 Law

14      In support of the action, the applicant raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. It disputes the Board of Appeal’s assessment relating to the visual and phonetic similarity of the signs at issue, and the global assessment of the likelihood of confusion.

15      EUIPO and the intervener dispute the applicant’s arguments.

16      Under Article 8(1)(b) of Regulation 2017/1001, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to 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 mark. Furthermore, under Article 8(2)(a)(ii) of Regulation 2017/1001, ‘earlier trade marks’ means trade marks registered in a Member State with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.

17      The risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).

18      For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).

19      In the present case, the Board of Appeal found that the relevant public comprised the Portuguese public at large with an average level of attention.

20      As regards the comparison of the goods at issue, the Board of Appeal confirmed that part of those goods, namely the goods in Class 32 covered by the mark applied for, were identical to the goods in the same class covered by the earlier mark. Furthermore, it proceeded on the presumption that was most favourable to the examination of the opposition that all the goods at issue were identical.

21      As regards the conceptual comparison of the signs at issue, the Board of Appeal found, in essence, that those signs did not have a clear meaning in relation to the goods at issue, with the result that no conceptual comparison was possible.

22      Those findings, which are not, moreover, disputed by the applicant, are correct.

23      The single plea in law must be examined in the light of those considerations.

 The comparison of the signs

24      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 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).

25      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).

26      Furthermore, the greater or lesser degree of distinctiveness of the elements common to the mark applied for and an earlier mark is one of the relevant factors in assessing the similarity of those signs (see judgment of 26 March 2015, Royal County of Berkshire Polo Club v OHIM – Lifestyle Equities (Royal County of Berkshire POLO CLUB), T‑581/13, not published, EU:T:2015:192, paragraph 41 and the case-law cited).

27      Indeed, the descriptive, non-distinctive or weakly distinctive elements of a complex trade mark generally have less weight in the analysis of the similarity between the signs than the elements of greater distinctiveness, which are also more able to dominate the overall impression created by the mark (see, to that effect, judgment of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 53 and the case-law cited).

28      In the present case, it must be held, as the Board of Appeal found, that the earlier mark is a figurative mark consisting of, first, the letter ‘b’ written in a black, upper-case, three-dimensional and bold font, and, secondly, an exclamation mark whereby the vertical line resembles a leaf. The mark applied for is also figurative and comprises a black star in the upper left corner and the word elements ‘it’s’ and ‘b’. Those elements appear in a black, stylised and handwritten typeface, whereby the letter ‘b’ is bold and in a slightly different typeface than the word element ‘it’s’.

29      Before addressing the question of the visual and phonetic similarity of the signs at issue, it is necessary to examine the assessment of the distinctive and dominant elements of those signs carried out by the Board of Appeal.

 The distinctive and dominant elements of the signs at issue

30      The Board of Appeal found, in the first place, that the depiction of a leaf in the earlier mark would be perceived as an indication that the goods covered by that mark were plant-based or included natural ingredients, or as a laudatory message. In the second place, it found that the star in the mark applied for would be perceived as an ornament with no meaning. Moreover, as regards the word elements making up the mark applied for, it found, first, that they would be perceived as a contracted version of ‘it is b’ in English, which has no clear meaning as a whole, and, secondly, that the word element ‘it’s’ would be understood by the relevant public, which has a basic knowledge of the English language, as referring to the word that follows it, namely the letter ‘b’. In the third place, it stated that that letter, which was common to the signs at issue and had no clear meaning as regards the goods at issue, was as such only weakly distinctive and thus had a diminished capacity to impact the impression produced by those signs.

31      The applicant submits that the letter ‘b’ common to the signs at issue is the main and dominant element of those signs, by which the relevant public will identify them. Furthermore, it submits that the stylisation of the mark applied for is secondary and that the star, which is insignificant, is devoid of distinctive character. It adds that, in so far as the word element ‘it’s’ in the mark applied for has no distinctive character and only refers to that letter, the Board of Appeal committed an error of assessment in attributing a low distinctive character to that letter, even though the public will clearly identify it.

32      EUIPO and the intervener dispute the applicant’s arguments.

33      First of all, it is not apparent from the contested decision that an element of the signs at issue was considered to be dominant. Contrary to what the applicant claims, the Board of Appeal confined itself to finding, correctly, that the depiction of the leaf of the earlier mark was descriptive or laudatory, that the star of the mark applied for was decorative, that the word element ‘it’s’ of that mark, which was a grammatical contraction in English of ‘it is’ and which would be understood by the relevant public with a basic knowledge of that language, referred to the letter ‘b’ that followed it and that that letter was common to the signs.

34      In that regard, it must be borne in mind that, according to the case-law cited in paragraph 25 above, 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. That is the case here, since the assessment of the similarity of the signs at issue must relate to the signs as a whole and cannot be reduced to the point of rendering the depiction of the leaf in the earlier mark and the star and the word element ‘it’s’ in the mark applied for negligible in order to rely solely on the letter ‘b’ that is common to them.

35      Next, as regards, in particular, the distinctive character of the letter ‘b’ common to the signs at issue, the Board of Appeal was correct to find that it was weak, even though that letter had no clear meaning in relation to the goods at issue.

36      According to settled case-law, a sign consisting of a single letter has a minimum degree of distinctive character or a weak, or even very weak, distinctive character, where that letter is not stylised or is only slightly stylised or where the other figurative elements of the sign in question are not striking (see, to that effect, judgments of 16 December 2015, CareAbout v OHIM – Florido Rodríguez (Kerashot), T‑356/14, not published, EU:T:2015:978, paragraph 44 and the case-law cited, and of 20 July 2017, Diesel v EUIPO – Sprinter megacentros del deporte (Representation of a curved and angled line), T‑521/15, not published, EU:T:2017:536, paragraphs 60 and 61). By contrast, where a sign consists of a highly stylised letter or is accompanied by other relatively elaborate figurative elements, that sign may be recognised as having a normal degree of distinctive character (see, to that effect, judgments of 25 June 2020, Pavel v EUIPO – bugatti (B), T‑114/19, not published, EU:T:2020:286, paragraph 96; of 9 November 2022, L’Oréal v EUIPO – Heinze (K K WATER), T‑610/21, not published, EU:T:2022:700, paragraph 56; and of 25 October 2023, Quantic Dream v EUIPO – Quentia (Q), T‑458/21, not published, EU:T:2023:671, paragraph 66).

37      That is also the case here, since although the signs at issue contain figurative elements, namely the exclamation mark in the shape of a leaf in the earlier mark and the star in the mark applied for, those elements are not particularly elaborate. Furthermore, the letter ‘b’, which is common to those marks, is not highly stylised, with the result that that letter has, in itself, only a weak degree of distinctiveness.

38      In that regard, it must nevertheless be borne in mind that, if an element common to the signs at issue has a weak distinctive character, such as the letter ‘b’ in the present case, it will considerably lessen the resulting similarity, although it cannot be disregarded for the purposes of comparing those signs (see, to that effect and by analogy, judgments of 4 March 2015, FSA v OHIM – Motokit Veículos e Acessórios (FSA K-FORCE), T‑558/13, not published, EU:T:2015:135, paragraph 42, and of 3 May 2023, Laboratorios Ern v EUIPO – Biolark (BIOLARK), T‑459/22, not published, EU:T:2023:237, paragraph 62).

39      Furthermore, the applicant’s argument that the word element ‘it’s’ of the mark applied for has no distinctive character must be rejected as irrelevant. As the Board of Appeal observed, it must be borne in mind that that word element refers to the element that follows it, namely the letter ‘b’, and that that mark taken as a whole will be perceived as a contracted version of ‘it is b’, which has no clear meaning.

40      Last, as regards the applicant’s argument that EUIPO should have refused registration of the mark applied for on the basis of Article 7(1)(b) of Regulation 2017/1001 if the letter ‘b’ were to have too low a distinctive character, that argument cannot succeed.

41      An argument based on an absolute ground for refusal is irrelevant in the context of opposition proceedings in respect of which the grounds on which such proceedings are based are relative grounds for refusal, referred to in Article 8 of Regulation 2017/1001 (see, to that effect, judgment of 28 May 2020, Consejo Regulador ‘Jamón de Teruel/Paleta de Teruel’ v EUIPO – Airesano Foods (AIRESANO BLACK El ibérico de Teruel), T‑696/18, not published, EU:T:2020:219, paragraph 29), as in the present case.

42      In view of the above, the Board of Appeal did not err in its assessment of the distinctive and dominant elements of the signs at issue.

 Visual similarity

43      The Board of Appeal found that, visually, the signs were similar to a low degree as they differed significantly in their length and overall appearance. In that regard, it had first pointed out that, despite the similarity of those signs resulting from the presence of the letter ‘b’ in each of them, the relevant public would easily perceive the differences given that those signs were short.

44      The applicant submits that the signs at issue are visually similar at least to an average degree to the extent that they have the letter ‘b’ in common and that the word element ‘it’s’ of the mark applied for, which has no distinctive character, merely draws attention to that letter, since the stylisation of the mark applied for and the star it contains are of little significance. Thus, it submits that the graphical differences between those signs are not sufficient to exclude a finding of visual similarity. It also disputes the importance attached by the Board of Appeal to the differences between those short signs.

45      EUIPO and the intervener dispute the applicant’s arguments.

46      In the present case, the signs at issue differ in their overall stylisation, in the presence of the exclamation mark in the shape of a leaf in the earlier mark and in the presence of the star and the word element ‘it’s’ in the mark applied for, that mark comprising four letters.

47      It should also be borne in mind that, according to the case-law, in the case of very short elements, the relevant public is able to perceive such differences more easily (see, to that effect, judgments of 23 February 2022, Ancor Group v EUIPO – Cody’s Drinks International (CODE-X), T‑198/21, EU:T:2022:83, paragraph 31, and of 25 October 2023, Q, T‑458/21, not published, EU:T:2023:671, paragraph 50).

48      Therefore, while it is true that there is some visual similarity between the signs at issue on account of the reproduction, within those signs, of the letter ‘b’, the degree of that similarity cannot be at least average, if not high, as the applicant maintains.

49      The applicant fails to take into account other factors, such as the different elements of the signs at issue and their stylisation and, in particular, the weak distinctive character of the letter ‘b’ common to those signs which, as noted in paragraphs 27 and 38 above, will consequently have less of an impact for the purposes of comparing those signs.

50      Thus, the differences in the overall appearance and length of the signs at issue cannot be ignored due to the presence the same single letter ‘b’, which, moreover, has a weak distinctive character and a different stylisation.

51      Consequently, 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.

 Phonetic similarity

52      The Board of Appeal found that the signs at issue had very different sounds and lengths. Consequently, despite the letter ‘b’ common to those signs, it found that, on account of the low distinctive character of that letter, those signs had a low degree of phonetic similarity.

53      The applicant submits that the signs at issue are phonetically similar to at least an average degree as they reproduce the letter ‘b’ and the word element ‘it’s’ of the mark applied for creates an insignificant difference, the result of which is to emphasise the sound of that letter. Thus, it takes the view that consumers will refer to the mark applied for by that letter, saying ‘it’s a B beverage’, which could refer both to the mark applied for and to the earlier mark.

54      EUIPO and the intervener dispute the applicant’s arguments.

55      It must be held, as the Board of Appeal found, that the earlier mark will be pronounced by the single letter ‘b’. As regards the mark applied for, that letter forms a logical unit with the word element ‘it’s’, namely the contracted version in English of ‘it is’, with the result that that mark will be pronounced ‘it’s b’, without referring to the star.

56      In that regard, the applicant’s assertion that the relevant public will refer to the goods of both the earlier mark and the mark applied for by asking for the ‘B beverage’ cannot call that finding into question.

57      While it is true that the word element ‘it’s’ in the mark applied for refers to or brings attention to what follows it, namely the letter ‘b’, that does not make it possible to assert, contrary to the applicant, that that word element will be completely ignored by the relevant public. Apart from the fact that that mark is short and that the relevant public will most certainly refer to it by ‘it’s b’, it has been stated in paragraph 34 above that the assessment of the signs at issue cannot be reduced to the point of rendering the depiction of the leaf in the earlier mark and the star and the word element ‘it’s’ in the mark applied for negligible in order to rely solely on the letter ‘b’ that is common to them.

58      Consequently, in the light of the differences between the signs at issue and the weak distinctive character of the letter ‘b’ that is common to them and which has less of an impact for the purposes of comparing them, the Board of Appeal did not make an error of assessment in finding that they were phonetically similar to a low degree.

 Global assessment of the likelihood of confusion

59      The 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 the similarity 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).

60      As regards the inherent distinctiveness of the earlier mark, the Board of Appeal found that it was at most average, given that, first, the letter ‘b’ had a weak degree of distinctiveness and that, secondly, the stylisation of that mark and the exclamation mark in the shape of a leaf were not particularly elaborate.

61      The Board of Appeal then recalled that a similarity between signs that, as in the present case, arises solely from the presence of the same letter, which in itself is weakly distinctive, will have a rather low impact on the global assessment and will not often lead to a likelihood of confusion. It also added that particular importance should be attached to the low degree of phonetic similarity in the light of the circumstances in which the goods at issue are being marketed. Accordingly, in view of the striking visual and phonetic differences between the signs at issue, which could not be outweighed by the letter common to those signs, it found that there was no likelihood of confusion.

62      The applicant submits that the Board of Appeal, in finding that there was no likelihood of confusion, failed to comply with the principle of interdependence, in view of the identity of the goods at issue, of the similarity of the signs at issue, the circumstances in which those goods are being marketed and the imperfect recollection of those signs that the relevant public will retain. It criticises the Board of Appeal for having paid more attention to the different elements, which are less important, whereas the relevant public will focus its attention on the main element of those signs, namely the letter ‘b’. Accordingly, it submits that the mark applied for should have been refused registration, given that the similarities between those signs could lead the public to believe that the mark applied for is a variation of the earlier mark and that those goods originate from the same undertaking.

63      EUIPO and the intervener dispute the applicant’s arguments.

64      In the present case, the parties agree that the goods at issue are identical. As regards the comparison of the signs at issue, as perceived by the relevant public with an average level of attention, although a conceptual comparison of those signs is impossible, they have a low degree of visual and phonetic similarity, in particular on account of the weak distinctive character of their letter ‘b’.

65      In the light of those considerations, there is no likelihood of confusion between the signs at issue and the applicant’s arguments cannot call that assessment into question.

66      First, as regards the applicant’s argument based on the principle of interdependence, it should be borne in mind that that principle should not be applied mechanically. Indeed, a mechanical application of the principle of interdependence does not lead to a correct global assessment of the likelihood of confusion (see, to that effect, judgment of 27 June 2019, Sandrone v EUIPO – J. García Carrión (Luciano Sandrone), T‑268/18, EU:T:2019:452, paragraph 95). Thus, in particular, there is nothing to preclude a finding that, in the light of the circumstances of a particular case, there is no likelihood of confusion, even where the goods are identical and there is a low degree of similarity between the signs at issue (see, to that effect, judgment 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 79).

67      It is also clear from the case-law that, as in the present case, where the earlier trade mark and the mark whose registration is sought coincide in an element that is weakly distinctive with regard to the goods or services at issue, the global assessment of the likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation 2017/1001, does not often lead to a finding that such a 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).

68      Secondly, as regards the applicant’s argument relating to the importance to be given to the letter ‘b’, which is the main element of and common to the signs at issue, that argument must be rejected.

69      In that regard, the Court has held that the fact that signs composed of the same letter are, by way of assumption, phonetically and conceptually identical is in no way irrelevant in the examination of similarity for the purposes of assessing the likelihood of confusion. On the contrary, it is precisely because of that phonetic and conceptual identity that special consideration is to be given, in the context of registering a trade mark composed of a single letter for goods identical to, or presenting a high degree of similarity to, those covered by an earlier trade mark composed of the same letter, to ensuring that the mark applied for is sufficiently visually distinct from the earlier mark, in order to exclude any likelihood of confusion on the part of the relevant public (see, to that effect, judgments of 10 May 2011, Emram v OHIM – Guccio Gucci (G), T‑187/10, not published, EU:T:2011:202, paragraph 60, and of 20 July 2017, Representation of a curved and angled line, T‑521/15, not published, EU:T:2017:536, paragraph 62 and the case-law cited).

70      Furthermore, a finding that amounts to recognising a likelihood of confusion between two signs, one consisting primarily of a stylised, single capital letter and the other consisting of the same capital letter but written in a different stylisation and combined with one or more other word elements, would de facto amount to granting a monopoly over one capital letter of the alphabet for a specific range of goods. The Court has already had occasion to assess that risk, pointing out that the purpose of the opposition brought on the basis of a sign consisting of a single letter is to prevent the registration of a trade mark which is likely to give rise to a likelihood of confusion with an earlier mark, ‘in particular on account of its stylistic similarity’. In contrast, according to the Court, the purpose of the opposition is not to prevent the registration of a trade mark because it represents the same capital letter; nor is it to prevent the registration of all other trade marks consisting of such a letter (judgment of 9 November 2022, K K WATER, T‑610/21, not published, EU:T:2022:700, paragraph 68 and the case-law cited).

71      In the present case, the signs at issue coincide only in their letter ‘b’, which in itself is weakly distinctive and differently stylised, whereas the visual and phonetic differences resulting from the presence of the exclamation mark in the shape of a leaf in the earlier mark and the star and the word element ‘it’s’ in the mark applied for, as well as the overall appearance, the length and pronunciation of those signs will be easily perceptible by the relevant public, given that those signs are short, irrespective of the fact that that public retains only an imperfect recollection of them (see paragraphs 46 to 51 and 55 to 58 above).

72      Thirdly, as regards the applicant’s argument concerning the circumstances in which the goods at issue were being marketed, it should be noted that both the Board of Appeal and the applicant correctly stated that particular importance should be attached to the phonetic similarity, given that those goods were consumed after having been ordered orally. However, in so far as only a low degree of phonetic similarity has been found in the present case, that argument of the applicant cannot lead to a finding that there is a likelihood of confusion.

73      Consequently, the Board of Appeal was correct in concluding that there was no likelihood of confusion.

74      In the light of all the foregoing considerations, since the single plea in law must be rejected, the action must be dismissed in its entirety.

 Costs

75      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.

76      Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the intervener. By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, given that no hearing was organised, bear its own costs.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Sumol + Compal Marcas S. A., in addition to bearing its own costs, to pay those incurred by Bosca Cora SpA;

3.      Declares that the European Union Intellectual Property Office (EUIPO) shall bear its own costs.

Delivered in open court in Luxembourg on 14 May 2025.

*      Language of the case: English.