JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

11 March 2026 (*)

( EU trade mark – Opposition proceedings – Application for EU figurative mark FLAMBIT – Earlier national word mark flambriks – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )

In Case T‑301/25,

Dariusz Kowalski, residing in Mogilno (Poland), represented by P. Kurcman, lawyer,

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

Hoyer SE, established in Visselhövede (Germany), represented by R. Böckenholt, lawyer,

The GENERAL COURT (Eighth Chamber),

composed of I. Gâlea, President, M. J. Costeira and T. Tóth (Rapporteur), 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 his action under Article 263 TFEU, the applicant, Mr Dariusz Kowalski, seeks annulment and alteration of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 March 2025 (Case R 633/2024-1) (‘the contested decision’).

 Background to the dispute

2        On 9 September 2022, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:

3        The mark applied for designated goods in Class 4 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and corresponding to the following description: ‘Firelighters; firelighters for grills; paper spills for lighting fires; wood spills for lighting fires; charcoal lighter fluid; solid fire starters’.

4        On 9 November 2022, the predecessor in law to the intervener, Hoyer SE, filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

5        The opposition was based on the earlier German word mark flambriks and on the earlier German figurative mark reproduced below:

6        The goods and services covered by the earlier marks on which the opposition was based are in Classes 4, 11 and 40 and correspond to the following description:

–        Class 4: ‘Fuels and illuminants’;

–        Class 11: ‘Igniters’;

–        Class 40: ‘Woodworking; felling and cutting wood’.

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

8        On 30 January 2024, the Opposition Division upheld the opposition on the basis of Article 8(1)(b) of Regulation 2017/1001, taking the view that there was a likelihood of confusion with the earlier figurative mark in respect of the goods referred to in paragraph 3 above.

9        On 25 March 2024, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision.

10      By the contested decision, the Board of Appeal dismissed the appeal solely on the basis of the earlier word mark. First, it noted that the relevant public consisted of the general public, who pay an average level of attention. It added that the relevant territory was that of Germany. Secondly, it found that the goods at issue were identical. Thirdly, the Board of Appeal noted that the marks at issue were visually similar to an average degree and phonetically similar to a high degree and could not be compared conceptually since they had no meaning. Fourthly, taking the view that the earlier word mark had an average degree of distinctiveness, the Board of Appeal concluded that there was a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation 2017/1001, on the part of the relevant public in respect of the goods referred to in paragraph 3 above.

 Forms of order sought

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

–        annul the contested decision and the decision of the Opposition Division as regards the goods in respect of which the opposition was upheld and refer the case back to EUIPO with a view to altering the contested decision and registering the mark applied for;

–        order EUIPO to pay the costs of the proceedings before its departments and the Court.

12      EUIPO contends that the Court should:

–        dismiss the action;

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

13      The intervener contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

14      In support of his action, the applicant raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. In essence, he denies that there is any likelihood of confusion on the part of the relevant public on the ground that the marks at issue are not similar overall. The applicant complains, in particular, that the Board of Appeal made errors in the assessment of distinctive elements of the marks at issue.

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

16      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.

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

18      For the 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).

19      It is in the light of those considerations that it is necessary to examine whether the Board of Appeal correctly held that there was a likelihood of confusion on the part of the relevant public, within the meaning of Article 8(1)(b) of Regulation 2017/1001.

 The relevant public and its level of attention

20      The applicant does not dispute the Board of Appeal’s assessments, made in paragraph 17 of the contested decision, according to which, first, the goods at issue were aimed at the general public, having an average degree of attention, and, secondly, as the opposition was based on an earlier German word mark, it is the general public in Germany that had to be taken into account.

 The comparison of the goods at issue

21      In paragraph 18 of the contested decision, the Board of Appeal endorses the Opposition Division’s finding that the goods at issue, in Class 4, were identical.

22      The applicant claims that there is no similarity between those goods. However, it is clear that such a claim must be rejected since he does not put forward any precise and structured arguments to support it.

 The comparison of the marks at issue

23      The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the marks at issue, be based on the overall impression given by the marks, 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 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).

24      In addition, in order to assess the degree of similarity between the marks concerned, the degree of visual, phonetic or conceptual similarity between them must be determined and, where appropriate, the importance to be attached to those different elements should be evaluated, taking account of the category of goods or services at issue and the circumstances in which they are marketed (see, to that effect, judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 27).

25      In the present case, before addressing the question of the similarity of the marks at issue, it is necessary to examine the assessment of the distinctive and dominant elements of those marks carried out by the Board of Appeal.

 The distinctive and dominant elements of the marks at issue

26      According to the 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 for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods 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 for which the mark has been registered (see judgment of 3 September 2010, Companhia Muller de Bebidas v OHIM – Missiato Industria e Comercio (61 A NOSSA ALEGRIA), T‑472/08, EU:T:2010:347, paragraph 47 and the case-law cited).

27      More specifically, where a mark consists of word and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more readily refer to the good in question by citing the name of the mark than by describing the figurative element of that mark (see judgment of 20 September 2019, The Logistical Approach v EUIPO – Idea Groupe (Idealogistic Compass Greatest care in getting it there), T‑716/18, EU:T:2019:642, paragraph 48 (not published) and the case-law cited).

28      With regard to the assessment of the dominant character of one or more given components of a complex trade mark, 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 complex mark (judgment of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 35; see, also, judgment of 13 December 2012, Natura Selection v OHIM – Ménard (natura), T‑461/11, not published, EU:T:2012:693, paragraph 45 and the case-law cited).

29      While it is true that the overall impression conveyed to the relevant public by a complex mark may, 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. That could be the case, in particular, where a component of a complex mark is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that the other component or components of that mark are negligible in the overall impression created by it (see judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraphs 42 and 43 and the case-law cited).

30      However, the fact that an element is not negligible does not mean that it is dominant, just as the fact that an element is not dominant by no means implies that it is negligible (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 44).

31      In essence, in paragraphs 21 to 27 of the contested decision, the Board of Appeal found that, since none of the signs at issue contained a word element suggesting a meaning for the relevant public, that public would perceive those signs as indivisible units and would not break them down into two elements, namely ‘flam’ and ‘briks’ as regards the earlier mark and ‘flam’ and ‘bit’ as regards the mark applied for. It emphasised, inter alia, that, irrespective of the relevant public’s understanding of the English language, there was no reason for that public to perceive the letters ‘f’, ‘l’, ‘a’ and ‘m’, the first four of the marks at issue, as equivalent to the English word ‘flame’ or the German word ‘Flamme’. It concluded that, contrary to the applicant’s assertions, those first four letters had distinctive character. Furthermore, the Board of Appeal took the view that the figurative element representing a flame and placed after the letter ‘t’ of the mark applied for was so small that it was likely to be overlooked or seen as negligible.

32      The applicant complains that the Board of Appeal erred in its assessment of the relevant public’s perception of the marks at issue. First of all, it claims that the word element ‘flam’, present in the initial part of each of the signs at issue, is devoid of distinctive character since it will be perceived by a majority of the relevant public as referring to the English word ‘flame’. Next, it notes that the word element ‘flam’ is commonly used in marks for goods in Class 4, as shown by the fact that that element forms part of more than 120 000 trade marks registered within the European Union by EUIPO or by the national offices of various Member States. Lastly, it concludes that the use of the word element ‘flam’ cannot be a basis for concluding that the marks at issue are similar.

33      EUIPO disputes the applicant’s arguments. It submits that, since none of the letters making up the marks at issue is separated by spaces or punctuation marks, the relevant German public will not break down those marks into two elements, namely the word elements ‘flam’ and ‘briks’ respectively as regards the earlier mark and ‘flam’ and ‘bit’ as regards the mark applied for. It adds, in essence, that, even if the relevant German public were to understand English, it would not break down those marks. In its view, the word element ‘flam’ cannot be associated with the English word ‘flame’ since ‘flam’ is not a common way of abbreviating that word.

34      In the first place, it should be noted that the applicant does not dispute the Board of Appeal’s assessment that the figurative element of the mark applied for is so small that it is likely to be overlooked or perceived as negligible.

35      In the second place, the applicant’s claim that, in essence, the Board of Appeal relied on the word element ‘flam’ to conclude that there was a similarity between the marks at issue must be rejected. It must be stated that it is unambiguously clear from paragraphs 23 and 24 of the contested decision that the Board of Appeal came to that conclusion on the basis, in particular, of the fact that those marks had in common their first five letters, namely ‘f’, ‘l’, ‘a’, ‘m’ and ‘b’.

36      In the third place, it must be held that, contrary to the Board of Appeal’s finding in paragraph 24 of the contested decision, the relevant public will not perceive the marks at issue as indivisible units, but will break them down into two elements, namely the word elements ‘flam’ and ‘briks’ as regards the earlier mark and ‘flam’ and ‘bit’ as regards the mark applied for. Although none of the letters making up those marks is separated by spaces or punctuation marks, it follows from the case-law that, notwithstanding the fact that it is normally appropriate to assess the similarity of the signs at issue on the basis of the overall impression produced by them without examining their individual details (see paragraph 23 above), the relevant public will break a word sign down into word elements which, for it, suggest a specific meaning or which resemble words known to it (see judgment of 8 July 2010, Engelhorn v OHIM – The Outdoor Group (peerstorm), T‑30/09, EU:T:2010:298, paragraph 77 and the case-law cited).

37      In the present case, since the first four letters (‘f’, ‘l’, ‘a’ and ‘m’) of each of the marks at issue resemble the word ‘Flamme’ in German or ‘flame’ in English, it cannot be ruled out that part of the relevant public, when confronted with the goods covered by the mark applied for and despite the spelling inaccuracies mentioned by the Board of Appeal in paragraph 24 of the contested decision, may perceive those four letters as being the word element ‘flam’ referring to a ‘luminous jet of burning gas from an object on fire’ and therefore as at least alluding to the goods at issue.

38      However, contrary to the applicant’s claims, the word element ‘flam’ retains weak distinctive character in the marks at issue. It is true that the applicant stated that more than 120 000 marks allegedly registered within the European Union by EUIPO or by the national offices of various Member States for goods in Class 4, some of which are mentioned in the application, contain the word element ‘flam’. Nevertheless, it cannot be inferred from such examples that the word element ‘flam’ has no distinctive character in respect of the goods in that class. The applicant merely refers to the alleged registration of those 120 000 marks containing that element and covering goods in Class 4, without providing further details. He has, in particular, failed to show that the marks at issue were actually used, or that one of those marks was similar to the marks at issue, or that one of them had acquired a reputation which could rule out the distinctive character of the word element ‘flam’ of those marks.

39      It follows from those considerations that, while the word elements ‘briks’ and ‘bit’ have an average degree of distinctiveness in relation to the goods at issue, the word element ‘flam’, which is common to the marks at issue, has a low degree of distinctiveness since it could be perceived as alluding to those goods.

40      It must therefore be held that the Board of Appeal erred in finding that the relevant public would perceive the marks at issue as indivisible units on the ground that none of those marks contained any word element suggesting a meaning for the relevant public.

41      However, such an error of assessment would justify the annulment of the contested decision only in so far as it has any bearing on the outcome of the proceedings. Thus, the effect of that error will be ascertained in the global assessment of the likelihood of confusion.

 The visual similarity

42      In essence, in paragraph 28 of the contested decision, the Board of Appeal found that the marks at issue were visually similar to an average degree. In order to reach that conclusion, it noted, first, that the marks at issue coincided in their first five letters (‘f’, ‘l’, ‘a’, ‘m’ and ‘b’) and in the presence of the letter ‘i’ and, secondly, that they differed in the letters ‘r’, ‘k’ and ‘s’ of the earlier mark and the letter ‘t’ of the mark applied for. It added, in essence, that, even if it were perceived by the relevant public, the figurative element of the mark applied for, representing a flame and placed after the letter ‘t’, would have less impact on account of its very small size.

43      The applicant disputes that assessment by the Board of Appeal. In essence, the applicant submits that, although the marks at issue have in common the word element ‘flam’, it is the notable difference in their last syllable (‘bit’ and ‘briks’ respectively) which is decisive and which makes it possible to rule out any visual similarity. In addition, the applicant is of the view that the differences between the graphic representations and the use of upper case for the mark applied for and lower case for the earlier mark create a visual dissimilarity between those marks.

44      As a preliminary matter, it should be borne in mind that, according to settled 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). The weakly distinctive character of an element which is common to two signs, just like the descriptive nature of such an element, significantly reduces the relative weight of that element in the comparison of those signs, including the visual and phonetic comparisons, even though its presence must be taken into account (see, to that effect, judgment of 6 November 2024, W. L. Gore & Associates v EUIPO – Angiokard med. Spritzguß (Cardioflow), T‑1146/23, not published, EU:T:2024:789, paragraph 46 and the case-law cited).

45      In the present case, it should be noted that the marks at issue, first, coincide in a sequence of five letters, all repeated in the same order at the beginning of those marks, namely ‘f’, ‘l’, ‘a’, ‘m’ and ‘b’ and in the presence of the letter ‘i’, and, secondly, differ in the letters ‘r’, ‘k’ and ‘s’ of the earlier mark and the letter ‘t’ of the mark applied for.

46      Accordingly, it is important to point out that the marks at issue have in common not only the weakly distinctive word element ‘flam’, but also the letter ‘b’ (in fifth position) and the letter ‘i’. Therefore, although the word element ‘flam’ has limited impact on the overall visual impression of those marks, they are visually similar to an average degree.

47      That conclusion cannot be called into question by the applicant’s argument relating to the difference in the final syllables of the marks at issue. That argument is based on the premiss that, in essence, the relevant public will attribute a purely descriptive meaning to the word element ‘flam’. However, as is apparent from paragraphs 38 and 39 above, such a premiss is incorrect and cannot succeed.

48      In any event, even if it were necessary to disregard the word element ‘flam’ as the applicant claims, he cannot validly maintain that the last syllable of each of the marks at issue is noticeably different. It must be stated, as is pointed out by EUIPO, that those syllables have in common their first letter ‘b’ and the letter ‘i’.

49      As regards the applicant’s argument relating to the differences between the graphic representations, it must be rejected since it is based on the analysis of the earlier figurative mark, referred to in paragraph 5 above, and not on the earlier word mark which was taken into account by the Board of Appeal in order to uphold the opposition and which contains no graphic representation or figurative element. Finally, it should be added that, contrary to the applicant’s assertions, whether the letters are written in upper or lower case is irrelevant in the comparison of the marks at issue, since the protection granted to a word mark relates to the word, and not to the particular graphic or stylistic aspects which that mark might possess (see, to that effect, judgment of 24 October 2019, Mahr v EUIPO – Especialidades Vira (Xocolat), T‑58/18, not published, EU:T:2019:759, paragraph 48 and the case-law cited).

50      In the absence of other arguments raised by the applicant in order to dispute the Board of Appeal’s assessments relating to the visual similarity of the marks at issue, it must be concluded that the Board of Appeal was fully entitled to conclude that there is an average visual similarity between those marks when they are taken as a whole.

 The phonetic comparison

51      In paragraph 29 of the contested decision, the Board of Appeal found that the marks at issue were phonetically similar to a high degree. In essence, in order to reach that conclusion the Board of Appeal noted that, although they differed in the letter ‘t’ of the mark applied for and in the letters ‘r’, ‘k’ and ‘s’ of the earlier mark, they coincided in their first syllable ‘flam’ and in the first letter ‘b’ and the letter ‘i’ of their second syllable.

52      The applicant calls into question that assessment of the Board of Appeal by merely submitting that, although the marks at issue have in common the word element ‘flam’, it is the complete difference in their last syllable (‘bit’ and ‘briks’ respectively) which is decisive and makes it possible to rule out any phonetic similarity.

53      In the first place, it must be added that, even if it were necessary to disregard the word element ‘flam’, as the applicant essentially claims, he cannot validly maintain that the last syllables of the marks at issue are completely different since they have in common the letter ‘b’ and the letter ‘i’.

54      In the second place, it is clear that the relevant public will pronounce the word element ‘flam’ and the letter ‘b’ at the beginning of the marks at issue, thus creating, in the mind of that public, an impression of phonetic similarity which is not offset by the differences introduced by the letter ‘t’ of the mark applied for and by the letters ‘r’, ‘k’ and ‘s’ of the earlier mark.

55      However, in the light of the characteristics of the elements which make up the marks at issue, it must be concluded that there is average phonetic similarity between those marks when they are taken as a whole. The Board of Appeal therefore erred in finding that there was a high degree of phonetic similarity. However, such an error of assessment would justify the annulment of the contested decision only in so far as it has any bearing on the outcome of the proceedings. Thus, the effect of that error will be ascertained in the global assessment of the likelihood of confusion.

 The conceptual comparison

56      In paragraph 30 of the contested decision, the Board of Appeal found that, since the marks at issue were meaningless for the relevant public, it was not possible to compare them conceptually. It added that, even if the figurative element of the mark applied for were perceived as representing a flame, that meaning would have a weak distinctive character in relation to the goods at issue and would therefore have no effect on the conceptual comparison.

57      In essence, the applicant claims that there is no conceptual similarity or ‘conceptual overlap’ between the marks at issue since they consist of the common word element ‘flam’, with no distinctive character, to which the word element ‘bit’ has been added as regards the mark applied for and the word element ‘briks’ as regards the earlier mark. They are entirely different.

58      In the first place, it should be pointed out that the applicant’s argument cannot succeed in so far as it is based on the incorrect premiss that the word element ‘flam’ has no distinctive character.

59      In the second place, it should be noted that, contrary to what the Board of Appeal found, the marks at issue are not meaningless for the relevant public. As is apparent from paragraph 37 above, the word element ‘flam’ may be perceived by the relevant public as referring to a ‘luminous jet of burning gas from an object on fire’ and therefore as at least alluding to the goods at issue.

60      However, in the light of its weak distinctive character, the meaning of the word element ‘flam’ has a very low impact on the overall impression produced by the marks at issue and that element is therefore not decisive. Accordingly, the degree of conceptual similarity between the marks at issue, when they are taken as a whole, is low.

61      The Board of Appeal therefore erred in finding that a conceptual comparison of the marks at issue was not possible. However, such an error of assessment would justify the annulment of the contested decision only in so far as it has any bearing on the outcome of the proceedings. Thus, the effect of that error will be ascertained in the global assessment of the likelihood of confusion.

 The likelihood of confusion

62      In essence, the applicant submits that, in the light of the lack of distinctive character of the common word element ‘flam’, the presence of that element in the marks at issue is not sufficient for it to be found that there is a likelihood of confusion. He adds that, having regard to the distinctive, dominant and eye-catching graphic representation of the mark applied for, it is clear that that mark is not similar to the earlier word and figurative marks.

63      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).

64      In the present case, it follows from paragraphs 20 to 61 above, first, that the goods at issue are aimed at the general public with an average level of attention, secondly, that those goods are identical and, thirdly, that the marks at issue have an average degree of visual and phonetic similarity. and a low degree of conceptual similarity.

65      In addition, the Board of Appeal noted that the earlier mark had average distinctive character. That finding is not as such disputed by the applicant, who merely emphasises the lack of distinctive character of the word element ‘flam’.

66      It is true that the signs at issue coincide in the word element ‘flam’, which is allusive, or even weakly distinctive. In that regard, it must be borne in mind that, according to the case-law, where the earlier trade mark and the mark applied for coincide in an element that is weakly distinctive with regard to the goods or services at issue, the global assessment of the likelihood of confusion does not often lead to a finding that such likelihood exists (judgment of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 53).

67      Nevertheless, in the present case, it must therefore be held, in a global assessment of those factors, in the light of the interdependence between them and of the imperfect recollection which the relevant public has of the marks at issue, that the Board of Appeal was right in finding that there was a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation 2017/1001, with regard to all of the contested goods. Thus, first, contrary to the applicant’s claims, the graphic representation of the mark applied for does not attract the consumer’s attention since it plays a secondary role. Secondly, the average degree of visual and phonetic similarity and the low degree of conceptual similarity between the marks at issue, taken as a whole, lead to the existence of a likelihood of confusion.

68      It follows that the errors which have been held to exist in paragraphs 40, 55 and 61 above do not have any bearing on the outcome of the proceedings and cannot result in the annulment of the contested decision.

69      In view of all the foregoing considerations, the single plea in law put forward by the applicant must be rejected and the action must therefore be dismissed in its entirety.

 Costs

70      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.

71      Since the applicant has been unsuccessful, he must be ordered to pay the costs incurred by the intervener, in accordance with the forms 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, as a hearing has not been organised, bear its own costs.

On those grounds,

The GENERAL COURT (Eighth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Mr Dariusz Kowalski to bear his own costs and to pay those incurred by Hoyer SE;

3.      Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.

Delivered in open court in Luxembourg on 11 March 2026.

*      Language of the case: English.