JUDGMENT OF THE GENERAL COURT (First Chamber)

9 September 2026 (*)

( EU trade mark – Invalidity proceedings – EU figurative mark papyros by Modus – International registration of the earlier word mark PAPYRUS – Relative ground for invalidity – Likelihood of confusion – Article 8(1)(b) and Article 60(1)(a) of Regulation (EU) 2017/1001 )

In Case T‑608/25,

Modus AE, established in Moschato (Greece), represented by M. Kosmopoulos, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by R. Raponi, acting as Agent,

defendant,

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

ISIS Papyrus Europe AG, established in Brunn am Gebirge (Austria), represented by W. Mosing, lawyer,

THE GENERAL COURT (First Chamber),

composed of E. Buttigieg, President, J. Schwarcz (Rapporteur) and M. Kancheva, 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, Modus AE, seeks annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 July 2025 (Cases R 1548/2024-1 and R 1628/2024‑1) (‘the contested decision’).

 Background to the dispute

2        On 21 November 2023, the intervener, ISIS Papyrus Europe AG, filed with EUIPO an application for a declaration of invalidity in respect of the EU trade mark which had been registered on 3 March 2020, under number 18144822, following an application filed on 31 October 2019 in respect of the following figurative sign:

3        The goods and services covered by the contested mark in respect of which a declaration of invalidity was sought were, inter alia, following the restriction made in the course of the proceedings before EUIPO, in Classes 9 and 42 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and corresponded, for each of those classes, to the following description:

–        Class 9: ‘Process controlling software; document automation software; content management software; workflow software; business process management [BPM] software; document management software; collaboration management software platforms; workflow management system software; all the above in relation to business documents workflow management software only’;

–        Class 42: ‘Upgrading of computer software; computer software design; software development; installation of software; software creation; maintenance of software; updating of computer software; software as a service [SaaS]; rental of software; rental of application software; software engineering; writing of computer software; configuration of computer software; maintenance and repair of software; testing of computer software; computer software research; quality control relating to computer software; computer software programming services; smartphone software design; updating of smartphone software; design and development of data retrieval software; design and development of data processing software; design and development of image processing software; providing user authentication services using single sign-on technology for online software applications; programming of software for Internet portals, chatrooms, chat lines and Internet forums; design and development of computer software for evaluation and calculation of data; programming of computer software for reading, transmitting and organising data; design and development of software in the field of mobile applications; design and development of software for instant messaging; design and development of computer software for process control; design and development of software for importing and managing data; all the above in relation to business documents workflow management software only’.

4        The application for a declaration of invalidity was based on the international trade mark registration designating the European Union No 591669 in respect of the word mark PAPYRUS for goods in Class 9 and corresponding to the following description: ‘Data processing apparatus, computers’.

5        The ground relied on in support of the application for a declaration of invalidity was that set out in Article 60(1)(a) 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), read in conjunction with Article 8(1)(b) of that regulation.

6        On 13 June 2024, the Cancellation Division upheld the application for a declaration of invalidity in respect of all the goods and services covered by the contested mark, with the exception of services of ‘quality control relating to computer software; debugging computer software for others’ belonging to Class 42.

7        On 1 August 2024, the applicant filed a notice of appeal with EUIPO against the Cancellation Division’s decision, in so far as it had declared the contested mark invalid in respect of the goods and services which it covered.

8        On 13 August 2024, the intervener filed a notice of appeal with EUIPO against the Cancellation Division’s decision, in so far as it had dismissed the application for a declaration of invalidity in respect of the services of ‘quality control relating to computer software; debugging computer software for others’ belonging to Class 42.

9        By the contested decision, the Board of Appeal, deciding on each of the appeals, first, upheld the intervener’s appeal, annulling in part the Cancellation Division’s decision in so far as it dismissed the application for a declaration of invalidity in respect of the services of ‘quality control relating to computer software; all the above in relation to business documents workflow management software only’, and, consequently, declared the contested mark invalid also for those services. Second, it dismissed the applicant’s appeal seeking annulment of the decision of the Cancellation Division in so far as it held the mark to be invalid. The Board of Appeal relied on the ground that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001 and that proof of peaceful coexistence of the marks at issue on the market had not been provided.

 Forms of order sought

10      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to maintain the registration of the contested mark in respect of all the goods and services covered by that mark;

–        order EUIPO and the intervener to pay the costs, including those incurred before the Board of Appeal.

11      EUIPO contends that the Court should:

–        dismiss the action;

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

12      The intervener contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

 The Court’s jurisdiction to deal with the applicant’s second head of claim

13      EUIPO argues that the applicant’s second head of claim is inadmissible inasmuch as it is not for the General Court to issue directions to EUIPO.

14      It should be noted that, by its second head of claim, the applicant requests that the General Court order EUIPO to maintain the registration of the contested mark for all the goods and services covered by that mark.

15      In that regard, it is sufficient to recall that, according to settled case-law, the General Court has no jurisdiction to issue directions to the institutions, bodies, offices and agencies of the European Union (see, to that effect, order of 26 October 1995, Pevasa and Inpesca v Commission, C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 24 and the case-law cited; see also, to that effect, judgment of 25 September 2018, Sweden v Commission, T‑260/16, EU:T:2018:597, paragraph 104 and the case-law cited).

16      It follows that the applicant’s second head of claim must be rejected on the grounds of lack of jurisdiction.

 Substance

17      The applicant relies on a single plea in law, alleging infringement of Article 60(1)(a) of Regulation 2017/1001, read in conjunction with Article 8(1)(b) of that regulation. In that regard, it claims, in essence, that there is no likelihood of confusion on the part of the relevant public.

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

19      In accordance with Article 60(1)(a) of Regulation 2017/1001, read in conjunction with Article 8(1)(b) of that regulation, an EU trade mark must be declared invalid on application to EUIPO where, 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 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.

20      The risk that the public may believe that the goods or services at issue 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 at issue 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).

21      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).

22      It is in the light of those considerations that the Court must examine whether, in the present case, the Board of Appeal was correct in finding that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.

23      As a preliminary point, it should be noted that there is no reason to call into question the findings of the Board of Appeal, which, moreover, are not contested by the applicant, that, in essence, first, the relevant public consists of business customers with an enhanced degree of attention and, second, the relevant territory is the territory of the European Union.

 The comparison of the goods and services

24      The applicant submits that the Board of Appeal was incorrect to find that the goods and services at issue are similar to different degrees and argues, to the contrary, that they are totally dissimilar. In that regard, the applicant considers, in essence, that the goods and services at issue, in so far as they are ‘software products’, and the others ‘hardware products’, are of a highly distinct nature. The applicant also claims that the goods and services at issue do not belong to one homogeneous sector, do not target the same consumers, do not have the same distribution channels and do not have the same commercial origin. Furthermore, it complains that the Board of Appeal did not take account of the higher level of attention of the relevant public. Finally, the applicant argues that the manner in which the services covered by the contested mark are marketed, as well as their cost, preclude any likelihood of confusion.

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

26      According to settled case-law, in assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as the distribution channels of the goods concerned (see judgment of 14 May 2013, Sanco v OHIM – Marsalman (Representation of a chicken), T‑249/11, EU:T:2013:238, paragraph 21 and the case-law cited).

27      In the present case, first, the Board of Appeal considered the goods covered by the contested mark in Class 9 to be similar to an average degree to the goods covered by the earlier mark in the same class. It based that assessment, in essence, on the complementarity of those goods, their overlap as regards the targeted consumers and their distribution channels, as well as the fact that they could be offered by the same undertakings.

28      Second, the Board of Appeal noted that the services covered by the contested mark in Class 42 are similar at least to a low degree to the goods covered by the earlier mark. In that regard, it considered that the goods and services at issue all fell within the domain of information technology, with the result that they overlapped as regards the consumers for whom they were intended. In addition, it stated that many undertakings offered ‘end-to-end IT solutions’, including the goods of the earlier mark and the services covered by the contested mark. Therefore, the services at issue are closely connected to the goods covered by the earlier mark, with the result that the relevant public could perceive them as having a common commercial origin.

29      In the first place, as regards the applicant’s arguments that, in essence, the goods and services covered by the contested mark and the goods designated by the earlier mark do not form part of a homogeneous sector, do not target the same consumers, do not have the same distribution channels and do not have the same commercial origin, it must be noted that those arguments are not supported by any concrete evidence, since the applicant merely disputes the assessments of the Board of Appeal.

30      In the second place, as regards the applicant’s argument, in essence, that the goods covered by the contested mark, namely ‘software products’, have a distinct nature to that of the goods covered by the earlier mark, namely ‘hardware products’, with the result that they are dissimilar, it should be noted that the Board of Appeal did not rely on the fact that the goods at issue were of the same nature in order to conclude that they were similar (see paragraph 27 above). The Board of Appeal in fact based its decision on other relevant factors within the meaning of the case-law cited in paragraph 26 above. In that regard, it considered that the goods at issue, all belonging to Class 9, were similar to an average degree based on their complementary nature and inasmuch as they overlap as regards the targeted consumers and distribution channels, and in so far as they could be offered by the same undertakings.

31      In that regard, first, as is clear from paragraph 29 above, the applicant was unable to provide evidence capable of undermining the conclusion of the Board of Appeal based on those other factors.

32      Second, it must be borne in mind that complementary goods or services are those between which there is a close connection, in the sense that one is indispensable or important for the use of the other with the result that consumers may think that the same undertaking is responsible for manufacturing those goods or for providing those services (see judgment of 22 January 2009, easyHotel, T‑316/07, EU:T:2009:14, paragraphs 57 and 58 and the case-law cited). In the present case, the applicant does not dispute the existence of a close connection between the goods at issue. Furthermore, regardless of whether the goods at issue are material or non-material, the fact remains that those goods may be complementary, with the result that they may be found to be similar.

33      In the third place, as regards the complaint made by the applicant that the Board of Appeal failed to draw the appropriate conclusions from the higher level of attention of the relevant public, it must be held that that complaint does not concern the comparison of the goods and services carried out in the contested decision, but is relevant to the examination of the merits of the Board of Appeal’s global assessment of the likelihood of confusion (see, to that effect, judgment of 10 September 2025, JSherwood v EUIPO – INA International (JSherWood wear it with pride), T‑448/24, not published, EU:T:2025:855, paragraph 39). That argument will therefore be examined in that context (see paragraph 100 below).

34      In the fourth place, the applicant submits that the cost and the specific manner in which the goods and services covered by the contested mark are marketed make any likelihood of confusion with goods covered by the earlier mark impossible. In that regard, it should be held that, according to the case-law, since particular marketing strategies for the goods or services covered by the marks may vary over time and may depend on the wishes of the proprietors of those marks, an analysis of whether there will be a likelihood of confusion between two marks cannot be dependent on the marketing intentions of the proprietors of the marks, whether implemented or not, which are by their very nature subjective (judgments of 15 March 2007, T.I.M.E. ART v OHIM, C‑171/06 P, not published, EU:C:2007:171, paragraph 59, and of 9 September 2008, Honda Motor Europe v OHIM – Seat (MAGIC SEAT), T‑363/06, EU:T:2008:319, paragraph 63).

35      The above findings cannot be invalidated by the applicant’s references to the EUIPO guidelines. Those guidelines are not binding legal acts for the purpose of interpreting provisions of EU law (judgment of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 48). Furthermore, in the present case, contrary to what is implied by the applicant’s claim in paragraph 14 of the application, the Board of Appeal did not consider that the software of one of the marks at issue was automatically similar to the goods and/or services which used software in order to function, since, as is apparent from paragraphs 34 to 39 of the contested decision, the Board of Appeal carried out an assessment of various relevant factors and, in particular, the complementarity of the goods and services at issue. Similarly, contrary to what the applicant claims, again in paragraph 14 of the application, it is apparent from the present case that the comparison of the goods at issue does not concern goods which are, on the one hand, very specific software, and, on the other hand, another type of very specific software, since, as is apparent from paragraph 4 above, the earlier mark does not cover software.

36      In the light of the foregoing, the applicant’s arguments do not call into question the Board of Appeal’s assessments relating to the comparison of the goods and services covered by the marks at issue.

 The comparison of the signs

37      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 at issue 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 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).

38      In the present case, before addressing the question of the visual, phonetic and conceptual similarity of the marks at issue, it is necessary to examine the Board of Appeal’s assessment of the distinctive and dominant elements of the contested mark.

–       Distinctive and dominant elements of the contested mark

39      First, as regards the distinctiveness of the elements making up the contested mark, the applicant submits, first of all, that the element ‘papyros’ means nothing in English, with the result that that element has an average to high degree of distinctiveness. Next, it claims that the word element ‘by Modus’ has a high to very high degree of distinctiveness, in so far as it indicates that the services come from a specific origin or person, namely the applicant, and not from another undertaking. In addition, the applicant denies that that element may be meaningless to the relevant public or that it is associated with a Latin phrase. Lastly, the applicant submits that the orange figurative element representing a papyrus expresses the meaning of the word ‘papyrus’.

40      Second, as regards the dominant elements of the contested mark, the applicant is of the opinion that the figurative element and the word element ‘papyros’ which make up that mark are co-dominant.

41      EUIPO and the intervener dispute the applicant’s line of argument.

42      In paragraph 44 of the contested decision, the Board of Appeal observed that the contested mark was composed, first, of the word elements ‘papyros’ and ‘by Modus’ in blue, the latter element being placed above the final letters of the element ‘papyros’ in a significantly smaller size, and, second, on the left-hand side, of a red figurative element representing a stylised papyrus.

43      As a preliminary point, it should be noted that, in paragraph 29 of the application, the applicant argued that the figurative element forming part of the contested mark is orange. However, it is apparent from the application form for registration of that mark, and from the contested decision, that it was registered as being blue and red. Therefore, even though that shade has no substantial impact on the contested decision, the Board of Appeal was correct to refer, in that decision, to the red colour of the figurative element of the contested mark.

44      In the first place, as regards the distinctive elements of the contested mark, the Board of Appeal concluded, first of all, that the word element ‘papyros’ would be understood throughout the European Union as a reference to the papyrus plant or the writing material made from that plant. The Board of Appeal considered that there was no apparent relation between the word element ‘papyros’ and the goods and services covered by the contested mark. Thus, it held that that element had an average degree of distinctiveness.

45      Next, as regards the figurative element represented in the contested mark, the Board of Appeal considered that it would be perceived as a mere illustration of the word ‘papyrus’.

46      Finally, as regards the word element ‘by Modus’, the Board of Appeal considered that it would be perceived throughout the European Union as a reference to a business name, and therefore had an average degree of distinctiveness. However, the Board of Appeal added that, due to the size and position of that element, it played only a subordinate role in the overall impression of the contested sign.

47      In the second place, the Board of Appeal did not explicitly rule on the existence of a dominant element in the contested mark. However, it noted that consumers usually focus their attention on the word elements of a composite mark rather than its figurative elements, with the result that they will pay the most attention to the word element ‘papyros’. Accordingly, it is apparent, in essence, from the foregoing that the Board of Appeal considered that the dominant element of the contested mark was the word element ‘papyros’.

48      According to the case-law, for the purposes of determining the distinctive character of an element making up a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the mark was registered as coming from a particular undertaking and, thus, to distinguish those goods or services from those of other undertakings. In making that assessment, account should be taken, in particular, of the inherent characteristics of the element in question in the light of whether it is at all descriptive of the goods or services for which the mark has been registered (order of 3 May 2018, Siberian Vodka v EUIPO – Schwarze und Schlichte (DIAMOND ICE), T‑234/17, not published, EU:T:2018:259, paragraph 38).

49      In order to assess whether one or more given components of a composite trade mark is dominant, account must be taken, in particular, of the intrinsic qualities of each of those components by comparing them with those of other components. In addition and accessorily, account may be taken of the relative position of the various components within the arrangement of the composite mark (judgments of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 35, and of 8 February 2007, Quelle v OHIM – NARS Cosmetics (NARS), T‑88/05, not published, EU:T:2007:45, paragraph 58).

50      It is in the light of those considerations that the Court must assess whether there are any distinctive and dominant elements in the contested mark.

51      In the present case, as regards, in the first place, the word element ‘papyros’, it should be noted that the etymology will be understood to be the word, of Greek origin, ‘papyrus’ and that it will thus relate directly to that. It will therefore be understood throughout the European Union, as was correctly pointed out by the Board of Appeal, and the Cancellation Division, as a reference to the plant named papyrus or the writing material made from that plant which bears the same name. Consequently, the applicant’s argument that the element ‘papyros’ has no meaning in English does not call into question the Board of Appeal’s assessment and must be rejected.

52      It is also necessary to uphold the Board of Appeal’s assessment that the element ‘papyros’, in view of its meaning, as set out in paragraph 51 above, has no direct connection with the goods and services covered by the contested mark, which consist, in essence, of workflow management software for commercial documents. In that regard, it cannot be asserted that a reference to the element ‘papyros’, or to its meaning in so far as it relates to the word ‘papyrus’, could in any way serve to describe the goods and services covered by the contested mark or allude to one of their characteristics.

53      It follows that the Board of Appeal did not make any error of assessment in finding that the word element ‘papyros’ had an average degree of distinctiveness.

54      In the second place, as regards the word element ‘by Modus’, a number of points must be noted. First, contrary to what is claimed by the applicant, the Board of Appeal did not consider that this element would be understood by the relevant public as relating to Latin expressions. That was an assessment made by the Cancellation Division which was not confirmed by the Board of Appeal. Next, it should be noted that both the applicant and the Board of Appeal agree on the meaning of the element ‘by Modus’, considering that that element would be understood by the relevant public as a reference to a business name. Finally, it is clear that that word element has no connection with the goods and services covered by the contested mark.

55      Furthermore, the applicant submits that the element ‘by Modus’ has a high, or even very high, degree of distinctiveness, in that it constitutes a direct reference to the commercial origin of the goods and services covered by the contested mark. In that regard, it should be recalled that it is for the applicant to explain why the Board of Appeal should have found that that element had a high, and not merely an average, degree of distinctiveness (see, to that effect, judgment of 12 June 2024, Google v EUIPO – EPay (GPAY), T‑78/23, not published, EU:T:2024:378, paragraph 59). In the present case, although it is true that that reference to the commercial origin of the goods and services confers on that word element an average degree of distinctiveness, the fact remains that the applicant has failed to adduce any evidence capable of establishing that that reference to the commercial origin possessed a high degree of distinctiveness.

56      In the third place, as regards the dominant elements of the contested mark, it must be noted that the parties agree that the word element ‘papyros’ is a dominant element in the contested mark. Furthermore, as regards the word element ‘by Modus’, it is undisputed between the parties that it is not dominant. Indeed, it should be stated that that element has a secondary impact in so far as it is positioned in the top right and is much smaller than the word element ‘papyros’, which occupies a central position in the contested mark, and the figurative element, which, although off-centre, is of a non-negligible size and is a different colour. Therefore, it is necessary to determine whether, as the applicant contends, the figurative element within the contested mark, which depicts a stylised red papyrus scroll, is also a dominant element of that mark.

57      In the present case, the figurative element in the contested mark is simple and relates to a papyrus, just like the dominant word element ‘papyrus’. That figurative element is not negligible in size, but is off-centre in relation to the sign taken as a whole. Similarly, it is a different colour from the rest of the sign, but has a relatively clear outline. Consequently, in the light of the case-law cited in paragraph 49 above, it cannot be held that that figurative element is a dominant element in the contested mark.

58      Therefore, the Board of Appeal did not make an error of assessment in finding that the word element ‘papyros’ is the only dominant element of the contested mark.

–       The visual comparison

59      The applicant believes that the marks at issue are not similar. In that regard, it submits, first of all, that they clearly differ in their typeface, colours, length and structure. In that regard, the contested mark consists of two word elements, ‘papyros’ and ‘by Modus’, totalling 14 lower-case letters, whereas the earlier mark consists of a single word element, ‘papyrus’, which consists of only 7 letters, written in upper case. Therefore, the contested mark is significantly longer than the earlier mark, which, according to the applicant, has a major impact on the perception of the relevant public.

60      Next, the applicant submits that the contested mark does not include the earlier mark, but that it is an exact rendering of the term ‘papyrus’ when it is translated into English from the Greek word written in Latin characters. The fact that those marks share some common letters does not prevent the relevant public from perceiving their differences, in particular the word element ‘by Modus’ placed at the beginning of the sign and the figurative element which make up the contested mark. The applicant submits in that regard that the beginning of a mark leaves a stronger impact on consumers, such that it offsets the presence of common letters in the present case.

61      Lastly, the applicant claims that the Board of Appeal did not assess the visual similarity of the marks at issue by considering the contested mark as a whole.

62      EUIPO and the intervener dispute the applicant’s line of argument.

63      Visually, in paragraphs 48 and 49 of the contested decision, the Board of Appeal noted that the marks at issue coincided in the letters ‘p’, ‘a’, ‘p’, ‘y’, ‘r’ and ‘s’ and that they differed in the letters ‘o’ in the contested mark and ‘u’ in the earlier mark, and in the additional word element ‘by Modus’, the figurative element of a stylised papyrus roll and the further graphic elements of the contested mark, namely the colour, the typeface and the arrangement of the elements of which it is composed. The Board of Appeal therefore considered that the marks at issue were visually similar to an average degree and stated that the earlier mark was reproduced almost identically in the contested mark, in which it maintained an independent distinctive character and represented the element to which consumers pay the most attention.

64      In that regard, it should be noted that the earlier mark consists of the word ‘papyrus’, comprising seven letters, whereas the contested mark is made up of the word element ‘papyros’, comprising seven blue letters, the word element made up of the two words ‘by’ and ‘Modus’ also comprising seven blue letters, and a red figurative element depicting a stylised papyrus scroll.

65      As a preliminary point, it must be borne in mind that, according to the case-law, where a figurative mark containing word elements is compared visually to a word mark, the marks are held to be visually similar if they have in common a significant number of letters in the same position and if the word element of the figurative sign is not highly stylised, notwithstanding the graphic representation of the letters in different fonts, in italics or in bold, in lower case or upper case, or in colour (see judgment of 17 May 2023, Panicongelados-Massas Congeladas v EUIPO – Seder (panidor), T‑480/22, not published, EU:T:2023:266, paragraph 39 and the case-law cited).

66      In the present case, it should be noted that the terms ‘papyrus’ and ‘papyros’ coincide in almost all the letters of which they are composed, with the exception of the letters ‘o’ and ‘u’. Furthermore, the coinciding letters appear in the same order in the two marks, which is of some importance to the assessment of the degree of similarity between the marks at issue. It must be stated that the word element ‘papyros’ in the contested mark is almost identical to the earlier mark PAPYRUS, with the result that the marks at issue bear a clear similarity in respect of those elements. It should also be added that the word element ‘papyros’ in the contested mark is the dominant element of that mark, with the result that it is the element which most attracts the attention of the relevant public, as is apparent from paragraph 56 above.

67      Nevertheless, it must be stated that the contested mark also consists of a figurative element which must be taken into consideration as regards the visual impression of the contested mark for the relevant public.

68      Similarly, the marks at issue are of different lengths, namely 7 and 14 letters respectively, due to the presence in the contested mark of the word element ‘by Modus’, which, as is apparent from paragraph 56 above, has a secondary impact on the overall impression created by that mark.

69      It follows from the foregoing that the Board of Appeal did not make an error of assessment in finding that the level of visual similarity between the marks at issue was average.

–       The phonetic comparison

70      The applicant argues that the word element ‘by Modus’ has a significant impact on the overall spoken sound of the marks. The earlier mark PAPYRUS contains only three syllables, whereas the contested mark papyros by Modus contains seven, with the result that there are important phonetic differences and that the marks at issue have only a low degree of phonetic similarity.

71      EUIPO and the intervener dispute the applicant’s line of argument.

72      In paragraph 50 of the contested decision, the Board of Appeal concluded that the marks at issue exhibited, in essence, a high degree of phonetic similarity. In that regard, the pronunciation of the earlier mark and that of the word element ‘papyros’ in the contested mark are very similar because, first, the letters ‘p’, ‘a’, ‘p’, ‘y’, ‘r’ and ‘s’ are pronounced identically and, second, the letters ‘o’ and ‘u’, which differ between the marks at issue, have a similar sound. As regards the word element ‘by Modus’ in the contested mark, the Board of Appeal considered, in essence, that, on account of its secondary visual role, that element, which has no equivalent in the earlier mark, had only a limited impact from a phonetic perspective.

73      As a preliminary point, it should be noted that the applicant itself recognised that the pronunciation of the word ‘papyrus’, which makes up the earlier mark, and that of the word element ‘papyros’, present in the contested mark, are identical.

74      Furthermore, according to the case-law, where a composite sign consists of several word elements, it is quite conceivable that some of them may, because of their size, colour or position, for example, attract the consumer’s attention more, so that he or she, needing to refer orally to the sign, will be prompted to pronounce only those elements and to disregard the others. The visual impression created by the specific graphic features of the verbal elements of a complex sign is therefore liable to influence the sound representation of the sign (see, to that effect, judgment of 25 May 2005, Creative Technology v OHIM – Vila Ortiz (PC WORKS), T‑352/02, EU:T:2005:176, paragraph 44).

75      In addition, it should be noted that consumers have a natural tendency to abbreviate long signs and not to pronounce all the word elements of which they consist (see, to that effect, judgment of 2 February 2022, Canisius v EUIPO – Beiersdorf (CCLABELLE VIENNA), T‑694/20, not published, EU:T:2022:45, paragraph 76 and the case-law cited).

76      It is apparent from paragraph 56 above that the word element ‘by Modus’ plays a secondary role in the overall impression created by the contested mark, such that it is probable that that element will not be pronounced by a significant part of the relevant public, who will pronounce only the first word in the contested mark, namely ‘papyros’.

77      It follows from the foregoing that, at least for a significant part of the relevant public, the marks at issue have a high degree of similarity from a phonetic perspective.

–       The conceptual comparison

78      The applicant submits, first, that the contested decision fails to take into account the difference created by the word element ‘by Modus’, which does not play a secondary role, but instead specifies the undertaking that provides the goods and services. That reference to a specific undertaking excludes, from the outset, any likelihood of confusion. Second, the applicant submits that the common element of the marks at issue, namely ‘papyrus’, is weakly distinctive, such that it has a limited role in their conceptual comparison. That factor, combined with the unusual nature of the element ‘papyros’ in the English language and the word element ‘by Modus’, leads to a low degree of conceptual similarity.

79      EUIPO and the intervener dispute the applicant’s line of argument.

80      In paragraph 51 of the contested decision, the Board of Appeal noted that the marks at issue had a high degree of conceptual similarity since they both refer to the papyrus plant or the writing material made from that plant. It added that the word element ‘by Modus’ did not alter the concept conveyed by the contested mark in so far as it did not form a conceptual unit with the word element ‘papyros’. In that sense, the element ‘by Modus’ would be perceived rather as a business name indicating the undertaking or the name of the person producing or offering the goods and services at issue.

81      In the present case, it should be noted that, in the contested mark, the word element ‘papyros’ will be understood as making reference to the word ‘papyrus’, which denotes a plant or a writing material made from that plant (see paragraph 51 above). Consequently, that element cannot be considered to be weakly distinctive, contrary to what the applicant argues, since it does not describe any characteristic of the goods and services at issue.

82      Furthermore, the figurative element of the contested mark depicts a stylised papyrus, with the result that it clearly reinforces the meaning of the contested mark as making reference to the word ‘papyrus’ written to the right of that element, such that when reading from left to right, the consumer will first see the graphic representation of a papyrus, then its verbal representation, with each of those representations reinforcing the other.

83      As regards the word element ‘by Modus’, that element will be understood as a reference to a business name, as was correctly found by the Board of Appeal in paragraph 51 of the contested decision. That finding is not such as to affect the meaning of the word element ‘papyros’ and of the figurative element, of which the contested mark is composed, which relates to the word ‘papyrus’. Even though the phrase ‘by Modus’ may be perceived as referring to the provider of the goods and services at issue, the concept conveyed by the contested mark is, in any event, that which is conveyed by the word ‘papyrus’, regardless of whether or not the goods and services at issue are provided by an identified undertaking. Thus, the word element ‘by Modus’ is not capable of giving a conceptual impression of the contested mark which differs from the earlier mark, since, as a reminder, that mark consists solely of the word ‘papyrus’ and therefore explicitly relates to it from a conceptual point of view.

84      In the light of the foregoing, the marks at issue have a high degree of similarity from a conceptual point of view.

 The distinctiveness of the earlier mark

85      The applicant argues that the term ‘papyrus’, which makes up the earlier mark, has a clear descriptive meaning and should be considered as non-distinctive in relation to the goods and services at issue. In that regard, the applicant argues that a high number of EU trade marks or international registrations designating the European Union consist of marks containing the element ‘papyrus’ for goods and services in Classes 9 and 42. It states that that element is actually present on the market for the goods and services at issue and is not limited to registers or databases.

86      EUIPO and the intervener dispute that line of argument.

87      It should be noted that the degree of distinctiveness of the earlier mark, which determines the scope of the protection conferred by that mark, is one of the relevant factors for the purpose of assessing the likelihood of confusion. The more distinctive the earlier mark, the greater the likelihood of confusion. That being so, the existence of a likelihood of confusion is not precluded where the distinctiveness of the earlier mark is weak (see judgment of 5 March 2020, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO, C‑766/18 P, EU:C:2020:170, paragraph 70 and the case-law cited).

88      In paragraph 52 of the contested decision, the Board of Appeal found that the earlier mark possessed a normal degree of distinctiveness, since the term ‘papyrus’ of which it is composed is neither descriptive nor allusive, because there is no direct and immediate relation between, on the one hand, the meaning of that term and, on the other, the goods and services at issue. The Board of Appeal was of the opinion that the applicant had not explained which characteristics of the goods and services at issue could be described or alluded to by the term ‘papyrus’.

89      In that regard, it should be stated that the applicant has not adduced any evidence to show that the characteristics of the goods covered by the earlier mark, namely data processing apparatus and computers, could be described by reference to the word ‘papyrus’, nor that it could in some way allude to those characteristics. Accordingly, that argument must be rejected.

90      Furthermore, as regards the argument that a number of marks, which are actually present on the market for the goods and services at issue, contain the element ‘papyrus’, the following should be noted.

91      The relevant factor for the purposes of disputing the distinctive character of an element is its actual presence on the market and not its presence in registers or databases (see judgment of 20 June 2019, Nonnemacher v EUIPO – Ingram (WKU), T‑389/18, not published, EU:T:2019:438, paragraph 83 and the case-law cited).

92      In the present case, the applicant merely produced, first, a database of marks containing the word ‘papyrus’ and, second, extracts from websites making reference to marks which do not have as their relevant territory the European Union, with the result that that evidence cannot constitute proof of the actual, widespread presence of the term ‘papyrus’ on the relevant market. Only one item of evidence submitted by the applicant before the adjudicating bodies of EUIPO, and before the General Court, relates to the territory of the European Union. Even assuming that that evidence refers to a mark and not to a company name, that is not sufficient to establish that the element ‘papyrus’ is widespread on the relevant market.

93      Consequently, the Board of Appeal was correct to find that the earlier mark had an average degree of inherent distinctiveness.

 The likelihood of confusion

94      The applicant submits that the Board of Appeal incorrectly relied on a direct comparison of the marks at issue. The Board of Appeal therefore failed to take into consideration the low distinctiveness of the common element ‘papyrus’, and the presence of dominant and distinctive elements, namely the figurative element and the word element ‘by Modus’. According to the applicant, the marks at issue produce different overall impressions and, due to the frequent use of the element ‘papyrus’ on the market, the goods and services at issue would not be presumed to originate from the same undertaking or from economically linked undertakings. The applicant reiterates its arguments regarding the comparison of goods and services, and those relating to the comparison of the marks at issue, and argues that there are sufficient grounds to rule out the existence of a likelihood of confusion in the mind of the relevant public.

95      EUIPO and the intervener dispute the applicant’s line of argument.

96      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 lesser degree of similarity between these 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).

97      In the present case, in paragraph 55 of the contested decision, the Board of Appeal found that, taking into account the average visual, the above-average phonetic and the high conceptual similarity of the marks at issue, the at-least-low degree of similarity of the goods and services at issue, and the normal distinctiveness of the earlier mark, there was a likelihood of confusion, even for professionals who show a heightened degree of attention. The Board of Appeal added, first, that the coincidences between the marks at issue were not limited to non-distinctive or weakly distinctive elements. On the contrary, the earlier mark was reproduced almost identically in the contested mark. Second, it found, in paragraph 56 of the contested decision, that the applicant had not proven that the marks at issue coexist peacefully.

98      In the present case, account must be taken of the average degree of similarity between the goods covered by the contested mark in Class 9 and the goods covered by the earlier mark in the same class (see paragraphs 27 and 36 above), the at-least-low degree of similarity between the services in Class 42 covered by the contested mark and the goods covered by the earlier mark (see paragraphs 28 and 36 above), the average degree of visual similarity between the marks at issue (see paragraph 69 above), the high degree of phonetic and conceptual similarity (see paragraphs 77 and 84 above), and the average degree of inherent distinctiveness of the earlier mark (see paragraph 93 above).

99      Since consumers have an imperfect recollection of trade marks, it is very likely that, in the light of the position and meaning of the element ‘papyros’, and the presence of the figurative element relating to that element, the relevant public, even though it displays a high level of attention when purchasing the goods and services at issue, may be led to believe that those goods and services come from the same undertaking or from economically linked undertakings.

100    Indeed, the case-law principle that consumers have only rarely the chance to make a direct comparison between the different marks at issue but must place their trust in the imperfect picture of them that they have kept in mind is also applicable to a public with a high level of attention (see, to that effect, judgments of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 26; of 16 December 2010, Longevity Health Products v OHIM – Gruppo Lepetit (RESVEROL), T‑363/09, not published, EU:T:2010:538, paragraph 33; and of 20 February 2018, Kwang Yang Motor v EUIPO – Schmidt (CK1), T‑45/17, not published, EU:T:2018:85, paragraph 57).

101    Consequently, the Board of Appeal did not make an error of assessment in finding that there was a likelihood of confusion, in accordance with the case-law cited in paragraph 96 above, with the result that the applicant’s line of argument must be rejected as unfounded.

102    The Board of Appeal was therefore correct to declare the contested mark invalid in respect of all the goods and services covered by it.

103    In the light of all the foregoing considerations, since the single plea in law relied on by the applicant must be rejected, the action must be dismissed in its entirety.

 Costs

104    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.

105    Therefore, since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener during the present proceedings, in accordance with the form of order sought by the latter. 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, in the absence of a hearing, be ordered to bear its own costs.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Modus AE to bear its own costs and to pay those incurred by ISIS Papyrus Europe AG;

3.      Orders EUIPO to bear its own costs.

Delivered in open court in Luxembourg on 9 September 2026.

*      Language of the case: English.