JUDGMENT OF THE GENERAL COURT (First Chamber)

8 July 2026 (*)

( EU trade mark – Opposition proceedings – Application for EU word mark BLUE PADEL – Earlier EU figurative marks BULLPADEL – Relative ground for refusal – Likelihood of confusion – Interdependence between factors – Article 8(1)(b) of Regulation (EU) 2017/1001 )

In Case T‑350/25,

Aguirre y Compañía, SA, established in Madrid (Spain), represented by J. Vicente Martínez, M. López Camba and E. Mourisco Ayuso, lawyers,

applicant,

v

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

defendant,

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

Maria Margarida Moreira de Almeida Santos, residing in Lisbon (Portugal), represented by R. Dinis Lucas, lawyer,

THE GENERAL COURT (First Chamber),

composed of E. Buttigieg (Rapporteur), President, J. Schwarcz and E. Tichy‑Fisslberger, 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, Aguirre y Compañía, SA, seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 March 2025 (Case R 1081/2024-5) (‘the contested decision’).

 Background to the dispute

2        On 18 November 2022, the intervener, Ms Maria Margarida Moreira de Almeida Santos, filed an application for registration of an EU trade mark with EUIPO in respect of the word sign BLUE PADEL.

3        The mark applied for covered goods in, inter alia, following the restriction made in the course of the proceedings before EUIPO, Class 25 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: ‘Jerseys [clothing]’.

4        On 28 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 following earlier EU trade marks:

–        the EU figurative mark reproduced below, filed on 14 August 2020 and registered on 23 January 2021 under number 18 289 451, covering goods in Classes 18, 25 and 28 and corresponding, for each of those classes, to the following description:

–        Class 18: ‘Leather and imitations of leather; trunks and suitcases; umbrellas and parasols; walking sticks; wallets, change purses, card cases [notecases]; backpacks, handbags, bags, athletic bags’;

–        Class 25: ‘Clothing, footwear, headgear; visors; cap peaks; sportswear; shirts, t-shirts, polo shirts, tops [clothing], trousers shorts, trousers, skirts, sweat shirts, unitards, jackets [clothing], cagoules, socks, gym suits, cuffs and headbands [clothing]; sports footwear; sneakers; hats, caps, foulards’;

–        Class 28: ‘Sporting goods; padel racquets, rackets; bands for handles of rackets and bats, protective tapes for bat and racket frames; tubes for picking up and storing balls; balls; covers for rackets and bats’,

–        the EU figurative mark reproduced below, filed on 6 October 2016 and registered on 8 March 2017 under number 15 896 855, covering goods in Classes 18, 25 and 35 and corresponding, for each of those classes, to the following description:

–        Class 18: ‘Leather and imitation leather; animal skins, hides; trunks and travelling bags; umbrellas and parasols; walking sticks; whips, harness and saddlery; rucksacks, wallets, purses, card cases (notecases) and sports bags’;

–        Class 25: ‘Clothing, footwear, headgear; visors, cap peaks’;

–        Class 35: ‘Wholesaling, retailing and sale via global computer networks of leather and imitations of leather, animal skins, hides, trunks and travelling bags, umbrellas and parasols, walking sticks, whips, harness and saddlery, backpacks and pocket wallets, purses, card cases (notecases), sports bags, clothing, footwear, headgear, visors, cap peaks, sporting articles, rackets and padel rackets’,

–        the EU figurative mark reproduced below, filed on 19 December 2008 and registered on 6 May 2010 under number 7 480 767, covering goods in Classes 18, 25 and 28 and corresponding, for each of those classes, to the following description:

–        Class 18: ‘Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins, hides; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery; all the aforementioned goods only to be used in the field of sports’;

–        Class 25: ‘Sports clothing, sports footwear, sports headgear’;

–        Class 28: ‘Games and toys; gymnastic and sporting articles not included in other classes; decorations for Christmas trees; bags especially designed for skis and surfboards; bags especially designed for skis and surfboards’.

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

7        On 26 March 2024, the Opposition Division rejected the opposition in respect of all the goods in question.

8        On 24 May 2024, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.

9        By the contested decision, the Board of Appeal dismissed the appeal. It found that, in the present case, there was no likelihood of confusion on the part of the relevant public, in the light of the average level of attention of that public, the low degree of similarity between the goods covered by the marks at issue, the low degree of visual and conceptual similarity and the average degree of phonetic similarity between the signs at issue, and the normal distinctiveness of the earlier marks. It also concluded that the earlier marks had no reputation in so far as, in its view, they did not enjoy enhanced distinctiveness through use, since the evidence submitted in that regard was insufficient and no link with those marks would be established by the relevant public if it encountered the goods covered by the mark applied for.

 Forms of order sought

10      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO and the intervener to pay the costs incurred.

11      EUIPO contends that the Court should:

–        dismiss the action in its entirety;

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

12      The intervener contends, in essence, that the Court should:

–        dismiss the action in its entirety;

–        order the applicant to pay the costs incurred in the opposition proceedings, the appeal proceedings and the present action.

 Law

13      The applicant puts forward two pleas in law, the first alleging infringement of Article 8(1)(b) of Regulation 2017/1001 and the second alleging infringement of Article 8(5) of that regulation.

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

14      By its first plea, the applicant submits that the Board of Appeal erred in finding that there was no likelihood of confusion on the part of the relevant public. The applicant submits that the Board of Appeal erred in its assessment of the level of attention of that public, the visual, phonetic and conceptual similarity of the signs at issue, the distinctive character of the earlier marks and the global assessment of the likelihood of confusion.

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      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. 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      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 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).

18      It is in the light of those considerations that it must, in the present case, be examined whether the Board of Appeal was correct in finding that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.

19      Since the Board of Appeal began its examination of the likelihood of confusion in relation to earlier EU figurative mark No 18 289 451 (‘the earlier mark’), it is necessary, first of all, to analyse the findings relating to that mark.

 The relevant public and its level of attention

20      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).

21      In the present case, the Board of Appeal found that the relevant public was the general public of the European Union, which, as regards the goods covered by the marks at issue, has an average level of attention. It also considered it relevant, in paragraph 20 of the contested decision, having regard to those marks and those goods, to focus in particular on the public in the European Union that plays padel.

22      The applicant submits that the Board of Appeal should not have considered it relevant to focus on the public in the European Union that plays padel, in so far as, with regard to the goods covered by the marks at issue in Class 25, the relevant public must be regarded as comprising average consumers of clothing in general, and not merely of sportswear. It adds that, since those goods are everyday consumer goods intended for the general public, are inexpensive and do not possess technical features requiring an average level of attention, the level of attention of that public must be regarded as ‘below average’.

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

24      The relevant public for the purpose of assessing the likelihood of confusion is composed of users likely to use both the goods or services covered by the earlier mark and those covered by the mark applied for. Thus, as a general rule, when goods or services covered by one of the marks at issue are included in the broader designation covered by the other mark, the relevant public is to be defined by reference to the more specific wording (see judgment of 24 May 2011, ancotel v OHIM – Acotel (ancotel.), T‑408/09, not published, EU:T:2011:241, paragraphs 38 and 39 and the case-law cited).

25      In that regard, it should be noted that the goods covered by the mark applied for consist of ‘jerseys [clothing]’ in Class 25. Those goods are not restricted, as such, as the applicant notes, to goods intended for the practice of sport. However, it must be noted, as EUIPO observed, that the Board of Appeal did not in any way limit its assessment of the likelihood of confusion to that part of the relevant public that played padel, as is apparent from paragraph 83 of the contested decision, but took it into account for the purposes of its assessment of the similarity of the goods and the signs at issue. That argument put forward by the applicant therefore has no basis in fact.

26      Although the applicant argues that the level of attention of the relevant public in relation to the clothing covered by the mark applied for in Class 25 is ‘below average’, it must be noted, as EUIPO submits, that it is apparent from the case-law that items of clothing in Class 25 are considered to be everyday consumer goods that are aimed at the general public, which will display an average level of attention when purchasing them (see judgment of 29 November 2023, Beauty Boutique v EUIPO – Lightningbolt Europe (Representation of a lightning bolt), T‑12/23, not published, EU:T:2023:768, paragraph 26 and the case-law cited).

27      It follows from the foregoing that the applicant’s arguments are not capable of calling into question the Board of Appeal’s findings concerning the relevant public and its level of attention.

 The comparison of the goods

28      As regards the comparison of the goods, first, the Board of Appeal found that, in so far as the goods covered by the mark applied for fell within the general category of clothing in Class 25 covered by the earlier mark and they overlapped with the category of sportswear in the same class, those goods could be regarded as identical, as was concluded by the Opposition Division without being contested by the parties.

29      Secondly, the Board of Appeal found that the goods covered by the mark applied for, in Class 25, and the ‘padel racquets, rackets’, in Class 28 and covered by the earlier mark, were complementary in so far as they were necessarily used together to play padel, met the same needs of end users and could be produced under licence by third-party undertakings for the same manufacturers and marketed under the same mark, use the same distribution channels and be sold in the same specialist shops. It concluded, however, that, given the technical aspects of those goods, which were manifestly different, and the fact that their manufacture differed, they were similar to a low degree.

30      The applicant agrees with the Board of Appeal’s findings set out in paragraph 29 above. It merely claims that the Board of Appeal made a manifest error of assessment in finding, in paragraph 80 of the contested decision, that there was a low degree of similarity between the goods covered by the mark applied for, in Class 25, and the ‘padel racquets, rackets’, in Class 28 and covered by the earlier mark, in the context of the global assessment of the likelihood of confusion. That objection, which concerns the global assessment of the likelihood of confusion, is addressed in the examination in paragraphs 92 to 98 below.

 The comparison of the signs

31      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 those signs, bearing in mind, inter alia, 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).

32      In the present case, the signs to be compared are the following:

33      The mark applied for is a word mark consisting of the word elements ‘blue’ and ‘padel’.

34      The earlier mark is a figurative mark consisting of the word element ‘bullpadel’, written in black italic type, followed by a black oval figurative element containing the capital letter ‘B’.

35      The applicant essentially criticises the Board of Appeal for concluding that, taken as a whole, the signs at issue were similar to a low degree, whereas, in its view, those signs exhibit, at the very least, an average degree of similarity. In support of its arguments, the applicant points to errors in the assessment of the distinctive character of the word element ‘padel’ and in the visual, phonetic and conceptual comparisons of the signs at issue.

36      In that regard, it must be stated, as a preliminary point, that 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. 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, paragraphs 41 and 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 24 October 2019, ZPC Flis v EUIPO – Aldi Einkauf (Happy Moreno choco), T‑498/18, EU:T:2019:763, paragraph 71).

37      It must be held that the word elements ‘bull’, contained in the earlier mark, and ‘blue’, contained in the mark applied for, must be regarded as distinctive, as was found by the Board of Appeal in paragraph 42 of the contested decision without being contested by the applicant.

–       Distinctive character of the element ‘padel’, common to the marks at issue

38      The Board of Appeal found that the element ‘padel’, common to the signs at issue, was devoid of distinctive character. It noted that the relevant public would perceive it directly as indicating that the goods in Classes 25 and 28 covered by the marks at issue were intended for playing padel.

39      The applicant submits that the term ‘padel’ is suggestive, and not descriptive of the goods in question. It maintains that not all of the goods in Class 25 are automatically intended for the practice of padel, with the result that the word ‘padel’ may have inherent distinctiveness in relation to those goods, in particular jerseys covered by the mark applied for, in so far as, whilst they may be used for playing padel, they are not specifically designed for that purpose.

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

41      It should be noted that, according to case-law, for the purpose of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods and services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods and services from those of other undertakings. In making that assessment, it is necessary to take into account, in particular, the inherent characteristics of that element and to ask whether it is at all descriptive of the goods and services for which the mark has been registered (see judgment of 4 February 2026, Médis v EUIPO – RGCC (WelMedis), T‑142/25, not published, EU:T:2026:70, paragraph 31 and the case-law cited).

42      However, according to case-law, the greater or lesser degree of distinctiveness of the elements common to a mark applied for and to 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).

43      Moreover, it should be noted that the descriptive, non-distinctive or weakly distinctive elements of a composite 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).

44      In the present case, it must be found, as the Board of Appeal noted, that the term ‘padel’, common to the marks at issue, will be immediately perceived by the relevant public as non-distinctive in relation to the goods covered by those marks in so far as, on the one hand, the goods covered by the earlier mark are, inter alia, padel racquets and sportswear and, on the other hand, the goods covered by the mark applied for are jerseys, which may, in particular, be marketed or used for playing padel.

45      Consequently, the Board of Appeal was correct in finding that the element ‘padel’, contained in the marks at issue, was not distinctive in relation to the goods in question.

–       Visual similarity

46      The Board of Appeal noted that the signs at issue contained the common term ‘padel’, coincided only in the initial letter ‘b’, as well as in the letters ‘u’ and ‘l’ in their first element – which were, however, in different positions – but that those signs differed in the last letter of their first word element, as well as in the figurative element present in the earlier mark. Having regard, in particular, to the lack of distinctive character of the element common to the marks at issue, the Board of Appeal concluded that they presented a low degree of visual similarity.

47      The applicant maintains that the signs at issue are, at the very least, visually similar to an average degree, since, in essence, they consist of a common word element, ‘padel’, which, although it has limited distinctive character, plays an important role in the overall perception of those signs and may attract the attention of the relevant public because of its length and position in those signs. It adds that the signs at issue coincide in the letter ‘b’, placed at the beginning of the word elements of which they consist, and in the letters ‘u’ and ‘l’, albeit placed in different positions within those signs. The applicant also argues, with regard to the figurative element in the earlier mark, that that element plays a secondary role in the overall impression produced by that sign. Finally, it submits that the differences between the signs at issue are not such as to counteract the similarities between them.

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

49      In the present case, it must be noted that the two marks at issue are of an identical length of eight letters and share the word element ‘padel’, and that they both begin with the letter ‘b’ but differ in their second to fourth letters (that is to say, the letter sequences ‘ull’ for the earlier mark and ‘lue’ for the mark applied for).

50      As the Board of Appeal stated, it is important to note that the term ‘padel’, common to the marks at issue, is not distinctive in relation to the goods covered by those marks, as is apparent from paragraph 48 above.

51      By contrast, the signs at issue differ as a result of the presence of the elements ‘bull’ and ‘blue’, which are distinctive. Moreover, it should be noted that the earlier mark also contains a figurative element, namely the letter ‘b’ inside a black oval, which distinguishes it from the mark applied for. That element contributes to creating an overall impression of the earlier mark which is different from that produced by the mark applied for.

52      In the light of the foregoing, it must be found, as the Board of Appeal concluded, that the signs at issue are visually similar to a low degree.

–       Phonetic similarity

53      The Board of Appeal noted that the signs at issue coincided in the pronunciation of the letter sequence ‘padel’ and differed in the pronunciation of the element ‘bull’ in the earlier mark and ‘blue’ in the mark applied for. It concluded that, in the light of the lack of distinctive character of the element ‘padel’, the marks at issue were phonetically similar to an average degree.

54      Based on the Spanish pronunciation of the signs at issue, which would be pronounced ‘bulpadèl’ for the earlier mark and ‘blou padèl’ for the mark applied for, the applicant agrees with the Board of Appeal’s conclusion that those signs are phonetically similar to an average degree. However, the applicant argues that, given that the word ‘blue’ is part of basic English vocabulary, it will be pronounced in accordance with the rules of English pronunciation, including by the average Spanish consumer. The mark applied for would thus be pronounced ‘blou padèl’ and the degree of phonetic similarity would be high. Finally, it adds that the signs at issue are pronounced with a similar rhythm and that the pronunciation of two of the three syllables comprising them is identical.

55      It must be noted that the signs at issue coincide in the element ‘padel’, which is, however, not distinctive in relation to the goods in Classes 25 and 28 covered by the marks at issue, as is apparent from paragraph 48 above.

56      By contrast, the signs at issue differ in the pronunciation of the terms ‘blue’ and ‘bull’, which will be pronounced ‘blou’ or ‘blu-é’, in particular by Spanish-speaking consumers, and ‘boul’ respectively.

57      Consequently, the Board of Appeal did not make an error of assessment in finding that the signs at issue had an average degree of phonetic similarity.

–       Conceptual similarity

58      The Board of Appeal concluded that the signs at issue were conceptually similar to a low degree in so far as they shared only the concept relating to the term ‘padel’, which was not distinctive, or at best only weakly distinctive, in relation to the goods in question and therefore had only a low impact on the conceptual comparison. According to the Board of Appeal, the relevant public will understand the meaning of the word ‘blue’ in the sign applied for, which would create further conceptual differences between the signs at issue. It adds that those signs differ all the more if the concept of the animal ‘bull’, arising from the element ‘bull’, a component of the earlier mark, is understood by the relevant public.

59      The applicant argues that the signs at issue are ‘at least … similar in part’ from a conceptual point of view in so far as, contrary to the Board of Appeal’s finding, the conceptual link conveyed by the common word element ‘padel’ is not irrelevant. Moreover, according to the applicant, the Spanish public cannot be expected to understand the term ‘bull’ as referring to the concept of ‘toro’ in Spanish, and nor can the term ‘blue’ be understood by the relevant public. It adds that, given the speed with which commercial transactions are carried out, it cannot be ruled out that the consumer might confuse ‘bull’ with ‘blue’.

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

61      As a preliminary point, it should be stated that the Board of Appeal found, on the one hand, in paragraph 64 of the contested decision, that there was no conceptual similarity and, on the other hand, in paragraph 80 of that decision, that there was a low degree of conceptual similarity. Although the Board of Appeal initially found that there was no conceptual similarity, it nevertheless took into account a low degree of conceptual similarity at the stage of the global assessment of the likelihood of confusion, which must be accepted in the present case, since such an approach is favourable to the applicant.

62      Conceptually, it should be noted that the marks at issue both evoke the concept of ‘padel sport’ on account of the presence of the common element ‘padel’ in the signs at issue. However, that element is not distinctive in relation to the goods covered by those marks in Classes 25 and 28, as is apparent from paragraphs 45 to 49 above.

63      In so far as the semantic content of the English term ‘blue’ will be understood by a significant part of the relevant public, the mark applied for also refers to the idea of a colour and therefore to a concept very different from that evoked by the earlier mark. The element ‘bull’, contained in the earlier mark, will, for its part, be perceived either as devoid of meaning for that part of the relevant public which does not understand the English term ‘bull’ or as referring to the concept of the animal ‘bull’.

64      Consequently, given that the coincidence between the signs at issue is connected with the concept conveyed by the non-distinctive common element ‘padel’ and given the conceptual differences arising from the other elements comprising those signs, namely ‘bull’ for the earlier mark and ‘blue’ for the mark applied for, the Board of Appeal was correct to conclude that there is a low degree of conceptual similarity between those signs.

65      Consequently, and in the light of the foregoing, it must be concluded that the Board of Appeal’s assessment, as regards the similarity between the signs at issue, is not vitiated by any error.

 The distinctive character of the earlier mark

66      The Board of Appeal found, in paragraphs 70 to 76 of the contested decision, that, taken as a whole, the evidence submitted by the applicant did not allow the conclusion to be drawn that the earlier mark had acquired enhanced distinctiveness through use or a reputation on the date of filing of the mark applied for, namely 18 November 2022, in respect of any of the goods for which it is registered. According to the Board of Appeal, although the evidence submitted demonstrates that the earlier mark has been used for a fairly long period on the market in Spain for padel racquets in Class 28, there is no direct or indirect evidence to support a finding that that trade mark is recognised by the relevant public.

67      The Board of Appeal also stated that the earlier mark had a normal degree of inherent distinctiveness.

68      The applicant claims that the earlier mark enjoys enhanced distinctiveness due to its use or reputation, at least in Spain, in relation to padel racquets. The applicant states that, during the proceedings before EUIPO, it submitted evidence confirming that it has established a position in the padel sports sector, at least in Spain, in so far as, in particular, its products have been associated with famous padel players and it has received several awards from renowned and prestigious institutions.

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

70      As a preliminary point, it must be noted that the applicant does not dispute the Board of Appeal’s finding that the earlier mark has a normal degree of inherent distinctiveness.

71      As regards the enhanced distinctiveness acquired through use claimed by the applicant, it must be recalled that, according to settled case-law, the existence of an unusually high level of distinctiveness as a result of the public’s recognition of a mark on the market necessarily presupposes that at least a significant part of the relevant public is familiar with it, without its necessarily having to have a reputation within the meaning of Article 8(5) of Regulation 2017/1001. It is not possible to establish in general terms, for example by referring to given percentages relating to the degree of recognition attained by the mark within the relevant section of the public, that a mark has enhanced distinctiveness as a result of the public’s recognition of it. Nevertheless, it must be acknowledged that there is a certain interdependence between the public’s recognition of a mark and its distinctive character in that the more the mark is recognised by the target public, the more the distinctive character of that mark is strengthened. In order to assess whether a mark has enhanced distinctiveness as a result of the public’s recognition of it, all the relevant facts of the case must be taken into consideration, in particular the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant section of the public which, because of the mark, identifies the goods or services concerned as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (see, to that effect, judgment of 12 July 2006, Vitakraft-Werke Wührmann v OHIM – Johnson’s Veterinary Products (VITACOAT), T‑277/04, EU:T:2006:202, paragraphs 34 and 35 and the case-law cited).

72      In the present case, in order to demonstrate that the earlier mark had a reputation and that it had acquired enhanced distinctiveness through use, the applicant produced the following evidence during the administrative proceedings:

–        extracts from its website and social media platforms containing information on the history and trajectory of the earlier mark, as well as photographs of sportswear and padel rackets, bags and footwear bearing the earlier mark (Annex 1);

–        invoices issued by the applicant between 2017 and 2023 to customers in Spain, Ireland, Finland, Italy, Sweden, Portugal, Denmark, Belgium and the Netherlands, as well as to customers outside the European Union, which refer to clothing, footwear, headgear and padel rackets (Annex 2);

–        a file entitled ‘Dossier prensa 2021’ comprising extracts from Spanish and Italian publications containing articles on the padel products marketed by it, rankings of padel racquets, and photographs showing padel players during competitions wearing clothing and footwear and using rackets bearing the earlier mark (Annex 3);

–        a report entitled ‘Informe MK Online 2018-2021’ containing analyses of internet traffic on its website broken down by users, returning visitors/new visitors, country, age and sex (Annex 4);

–        a document originating from the applicant containing a table of the amounts budgeted for publicity and customer-related activities for 2020 and 2021 (Annex 5);

–        invoices, addressed to it, issued between 2019 and 2020 by various companies and entities, concerning advertising material and sponsorship (Annex 6);

–        an affidavit of its managing director dated 5 September 2016 containing figures for the total volume of sales and units sold per year between 2011 and 2015 under the earlier mark (Annex 7);

–        extracts from various online publications on specialised websites reporting on the awards conferred on it by the Spanish Padel Federation and the ‘World Padel Awards’ for its padel racquets marketed under the earlier mark between 2017 and 2021 (Annex 8);

–        extracts from Spanish sports newspaper websites showing its sponsorship of sporting events, in particular in Spain (Annex 9);

–        extracts from websites providing information on the padel racquets marketed under the earlier mark and on its sponsorships (Annex 10);

–        a ranking of the most popular padel brands on Instagram compiled by a consultancy and audit firm (included in its written submissions before EUIPO).

73      First, as regards the applicant’s website presented in Annex 1, it should be noted that the evidential value of the information appearing on that webpage must be qualified, since the applicant is itself the author of that information (see, to that effect, judgment of 16 June 2015, Norma Lebensmittelfilialbetrieb v OHIM – Yorma’s (Yorma Eberl), T‑229/14, not published, EU:T:2015:384, paragraph 48).

74      Secondly, the Spanish and Italian press articles set out in Annexes 3, 8, 9 and 10 mention the applicant in connection with padel racquets covered by the earlier mark. Those articles highlight, in particular, the prizes and awards granted to the applicant (Annexes 3 and 8), refer to the earlier mark as ‘the best-known brand on the market’ (Annex 10) and demonstrate the sponsorship of sporting events by that mark (Annexes 1 and 9). However, recognition of the mark in relation to the goods which it covers must be assessed in the light of the relevant public for the goods covered by that mark (see, to that effect, judgment of 27 November 2008, Intel Corporation, C‑252/07, EU:C:2008:655, paragraph 34 and the case-law cited), that is to say, in the present case, the general public, which is reasonably well informed and reasonably observant and circumspect. Consequently, no direct conclusions can be drawn from those press articles in the absence of evidence enabling an objective assessment of the impact of such articles on the actual reputation of the trade mark among the general public, such as an opinion poll or a market survey (see, to that effect, judgment of 8 November 2017, Oakley v EUIPO – Xuebo Ye (Representation of a discontinuous ellipse), T‑754/16, not published, EU:T:2017:786, paragraph 105).

75      Thirdly, it is apparent from Annexes 3 and 8 that the applicant has received awards from institutions which it describes as renowned and prestigious, which demonstrates the public’s recognition of the earlier mark. In that regard, it must be noted, as the Board of Appeal observed, that the applicant has not provided any information as to the criteria used to establish those rankings or to award those prizes. In the absence of such information, it is not possible to draw any conclusions from that evidence as regards the distinctive character of the earlier mark.

76      Fourthly and finally, as regards the affidavit of the applicant’s managing director submitted in Annex 7, it should be noted that where a statement has been drawn up, for the purposes of Article 97(1)(f) of Regulation 2017/1001, by a manager of the interested party, such a statement can only be accorded evidential value if it is supported by other evidence. A statement drawn up in the interests of its author has only limited evidential value and must be supported by additional evidence, even though that does not, however, allow the adjudicating bodies of EUIPO to conclude as a matter of principle that such a statement is, in itself, devoid of any credibility. The evidential value of such a statement, taken in isolation or in conjunction with other evidence, depends, inter alia, on the circumstances of the case (see judgment of 28 June 2023, CEDC International v EUIPO – Underberg (Shape of a blade of grass in a bottle), T‑145/22, EU:T:2023:365, paragraph 84 and the case-law cited).

77      However, the statement contained in Annex 7, which relates to the total volume of sales and units sold under the earlier mark between 2011 and 2015, is not supported by any other objective evidence relating to the same period.

78      In any event, the figures set out in the statement in Annex 7 cannot suffice to demonstrate particular recognition of the earlier mark by the relevant public, in the absence of any information concerning the total volume of the relevant market.

79      Moreover, the applicant’s argument that the evidence submitted must be assessed in the context of the padel sector, which is not particularly large, cannot be accepted, since none of the evidence it has submitted makes it possible to determine the size of that sector.

80      The Board of Appeal therefore did not make an error of assessment in finding that that the applicant had not proved that the earlier mark had enhanced distinctiveness acquired through use by the relevant date, as regards padel racquets in Class 28. Consequently, it must be held that the Board of Appeal did not err in basing its assessment of the likelihood of confusion on the inherent distinctiveness of the earlier mark, which it defined as normal.

 The likelihood of confusion

81      In the context of the global assessment of the likelihood of confusion, the Board of Appeal found, in paragraphs 80 to 83 of the contested decision, that, in the light of the low degree of similarity between the goods covered by the marks at issue, the non-distinctive character of the common element ‘padel’, the low degree of visual and conceptual similarity and the average degree of phonetic similarity between the signs at issue, the average level of attention of the relevant public and the normal degree of inherent distinctiveness of the earlier mark, there was no likelihood of confusion either on the part of the Spanish-speaking public or on the part of the relevant public of the European Union as a whole.

82      In particular, the Board of Appeal argues that the same conclusion would apply even if the earlier mark were recognised as having acquired enhanced distinctiveness through use in relation to padel racquets in Class 28.

83      The applicant disputes those findings. It maintains that there is a likelihood of confusion on the part of the relevant public with a level of attention ranging from average to low, given the identity of some of the goods covered by the marks at issue, the visual, phonetic and conceptual similarities between the signs at issue and the enhanced distinctiveness acquired through use of the earlier mark.

84      Moreover, the applicant submits that the Board of Appeal made a ‘manifest error’ in finding, in the context of the global assessment of the likelihood of confusion in paragraph 80 of the contested decision, that there was a low degree of similarity between the goods covered by the marks at issue, contrary to the finding in paragraph 23 of the contested decision.

85      EUIPO contends that the applicant has not put forward any independent argument regarding the global assessment of the likelihood of confusion and recalls that where the signs at issue coincide in a weakly distinctive or descriptive element, the global assessment of the likelihood of confusion does not necessarily lead to a finding that there is a likelihood of confusion.

86      EUIPO also argues that the fact that the Board of Appeal referred, in paragraph 80 of the contested decision, only to a low degree of similarity between the goods covered by the marks at issue constitutes an inadvertent omission on the part of the Board of Appeal, which has no bearing on the contested decision, since it is clear from the contested decision, in particular from paragraphs 80 to 83 thereof, that the Board of Appeal took account of the partial identity of those goods in the context of the global assessment of the likelihood of confusion.

87      The intervener submits that, in so far as the signs at issue are similar to a low degree and differ because of the presence of figurative elements in the earlier mark, it cannot be concluded that there is a likelihood of confusion on the part of the relevant public.

88      It should be noted that, in the context of the global assessment of the likelihood of confusion carried out in paragraphs 80 to 84 of the contested decision, the Board of Appeal erred in finding that there was a low degree of similarity between the goods covered by the marks at issue.

89      As is apparent from paragraph 23 of the contested decision, the goods covered by the marks at issue in Class 25 are identical and the goods covered by the mark applied for and the ‘padel racquets, rackets’ in Class 28 and covered by the earlier mark are similar to a low degree. However, in the context of the global assessment of the likelihood of confusion, the Board of Appeal took into account only a low degree of similarity between the goods in question.

90      Moreover, it should be noted that, contrary to what is argued by EUIPO, the assessment made by the Board of Appeal in paragraphs 80 to 83 of the contested decision cannot be understood as taking into account the goods covered by the marks at issue which it considered to be identical, in so far as paragraph 80 of that decision expressly and solely refers to a low degree of similarity between those goods.

91      It must be held that that error cannot be without consequence for the global assessment of the likelihood of confusion.

92      According to settled case-law, the existence of a likelihood of confusion depends on numerous elements, in particular the recognition of the trade mark on the market, the association which can be made with the used or registered sign, and the degree of similarity between the trade mark and the sign and between the goods or services identified. The likelihood of confusion must therefore be assessed globally, taking into account all the relevant factors of the particular case (see judgment of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 41 and the case-law cited).

93      A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (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).

94      It cannot be ruled out that, in the context of the global assessment of the likelihood of confusion, the identity of the goods covered by the marks at issue may, in accordance with the case-law referred to in paragraph 93 above, offset the low degree of visual and conceptual similarity between the signs, based on a non-distinctive element.

95      Moreover, in the context of the global assessment of the likelihood of confusion, account must also be taken of other relevant factors, namely the average level of attention of the relevant public, the average phonetic similarity of the signs at issue and the average inherent distinctiveness of the earlier mark.

96      Consequently, it must be held that, in the light of the interdependence of the relevant factors, the Board of Appeal’s failure to take into account, in its global assessment of the likelihood of confusion, the fact that some goods covered by the marks at issue were identical vitiates with an error of assessment its conclusion regarding the likelihood of confusion.

97      In the light of the finding in paragraph 96 above, there is no need to examine the likelihood of confusion in relation to the other earlier marks.

98      It follows from all the foregoing considerations that the first plea raised by the applicant, alleging an infringement of Article 8(1)(b) of Regulation 2017/1001 and seeking the annulment of the contested decision, must be upheld, without it being necessary to examine the second plea raised by the applicant.

 Costs

99      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.

100    Since EUIPO has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the applicant.

101    Pursuant to Article 138(3) of the Rules of Procedure, the intervener must bear its own costs.

102    With regard to the applicant’s claim relating to the costs incurred in the proceedings before EUIPO, in the circumstances of the present case, it will be for the Board of Appeal to decide, in the light of the present judgment, on the costs relating to the proceedings before the Opposition Division and the proceedings before it (see, to that effect, judgment of 29 May 2018, Uribe-Etxebarría Jiménez v EUIPO – Núcleo de comunicaciones y control (SHERPA), T‑577/15, EU:T:2018:305, paragraph 94 and the case-law cited).

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 March 2025 (Case R 1081/2024-5);

2.      Orders EUIPO to bear its own costs and to pay those incurred by Aguirre y Compañía, SA;

3.      Orders Ms Maria Margarida Moreira de Almeida Santos to bear her own costs.

Delivered in open court in Luxembourg on 8 July 2026.

*      Language of the case: English.