JUDGMENT OF THE GENERAL COURT (First Chamber)

14 January 2026 (*)

( EU trade mark – Opposition proceedings – Applications for the EU word marks Kimkom and Kimsum – Earlier EU word mark KIMPTON – Relative ground for refusal – Likelihood of confusion – Similarity of the services – Article 8(1)(b) of Regulation (EU) 2017/1001 )

In Cases T‑619/24 and T‑621/24,

Kimpton Hotel & Restaurant Group LLC, established in Wilmington, Delaware (United States), represented by A. von Mühlendahl, C. Eckhartt, P. Böhner and C. Reineke, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by M. Eberl and V. Ruzek, acting as Agents,

defendant,

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

Kamstar GmbH, established in Düsseldorf (Germany),

THE GENERAL COURT (First Chamber),

composed, at the time of the deliberations, of M. Brkan (Rapporteur), acting as President, I. Gâlea and S.L. Kalėda, Judges,

Registrar: G. Mitrev, Administrator,

having regard to the written part of the procedure,

further to the joint hearing on 10 September 2025,

gives the following

Judgment

1        By its actions under Article 263 TFEU, the applicant, Kimpton Hotel & Restaurant Group LLC, seeks the alteration in part of the decisions of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 September 2024 (Cases R 2369/2023-1 and R 2370/2023-1) (together, ‘the contested decisions’).

 Background to the dispute

2        On 26 and 30 June 2022, Kamstar GmbH filed two applications for registration of an EU trade mark with EUIPO, for the word signs Kimsum (Case T‑621/24) and Kimkom (Case T‑619/24), respectively.

3        The mark Kimkom covered, inter alia, services in Class 43 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: ‘Hotels; resort hotels; booking services for hotels; information relating to hotels; restaurants; restaurants (self-service -); fast food restaurants; reservation of restaurants; serving food and drink in restaurants and bars; providing food and drink in restaurants and bars; hotel reservations; making hotel reservations for others; booking of hotel accommodation; hotel room booking services; agency services for booking hotel accommodation; booking agency services for hotel accommodation; booking of hotel rooms for travellers; homes (retirement -); retirement homes; retirement home services; homes for the elderly [retirement]; catering services for retirement homes; day care centers; day-care center services; nurseries and day care centers; nurseries, day-care and elderly care facilities’.

4        The mark Kimsum covered, inter alia, services in Class 43 corresponding to the following description: ‘Restaurant reservation services; Japanese restaurant services; Chinese restaurant services; restaurant services provided by hotels; restaurant services; travel agency services for booking restaurants; hotel catering services; hotel reservations; hotel accommodation services; hotel services; booking of hotel accommodation; provision of hotel accommodation; resort hotel services; bar services; retirement home services; nurseries, day-care and elderly care facilities’.

5        On 11 October 2022, the applicant filed notices of opposition to registration of the marks applied for in respect of the services referred to in paragraphs 3 and 4 above.

6        The oppositions were based on the earlier EU word mark KIMPTON, covering, inter alia, services in Class 43 corresponding to the following description: ‘Hotel services, motel services, provision of accommodation; resort hotel services; temporary accommodation services; reservation services for hotel accommodation services and for other accommodation; vacation information and planning relating to accommodation; bar services, cocktail lounge services; cafe services, restaurant and snack bar services; restaurant reservations; catering services for the provision of food and drink; provision of conference, meeting, event, convention and exhibition facilities; hotel check-in and check-out services; providing banquet and social function facilities for special occasions; travel agency services for the reservation of hotel accommodations; electronic information services relating to hotels; hospitality advisory and consultancy services relating to the aforesaid’.

7        The ground relied on in support of the oppositions 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        By two decisions of 11 October 2023, the Opposition Division rejected the oppositions on the ground that there was no likelihood of confusion on the part of the relevant public. Proceeding from the assumption, for reasons of procedural economy, that the services at issue were identical, it found that the marks at issue were visually and phonetically similar to a low degree, while, conceptually, no comparison was possible. Taking into account those factors and the normal degree of inherent distinctiveness of the earlier mark, it concluded that the differences between the marks were sufficient to exclude any likelihood of confusion.

9        On 4 December 2023, the applicant filed notices of appeal with EUIPO against the decisions of the Opposition Division.

10      By the contested decisions, the Board of Appeal upheld the appeals in part.

11      First, the Board of Appeal upheld the appeals in respect of those of the services covered by the marks applied for which it considered to be identical or very similar to the services covered by the earlier mark. In that regard, it concluded that, taking into account the average degree of visual similarity, the average or high degree of phonetic similarity, the lack of conceptual similarity between the marks at issue and the normal level of inherent distinctiveness of the earlier mark, there was a likelihood of confusion, even for the relevant public which displays a high level of attention for those services.

12      Second, the Board of Appeal dismissed the appeals in respect of the ‘day care centers; day-care center services; nurseries and day care centers; nurseries, day-care and elderly care facilities’ covered by the mark Kimkom in Case T‑619/24, and in respect of the services ‘nurseries, day-care and elderly care facilities’ covered by the mark Kimsum in Case T‑621/24. It found that those services and those covered by the earlier mark were, at most, similar to a low degree and concluded that there was no likelihood of confusion, given that the relevant public displays a high level of attention for all those services.

 Forms of order sought

13      The applicant claims that the Court should:

–        alter the contested decisions to the effect that the applications to register the marks applied for are further rejected for ‘day-care and elderly care facilities’ in Class 43;

–        order EUIPO to pay the costs.

14      EUIPO contends that the Court should:

–        dismiss the actions;

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

 Law

15      Having heard the parties, the Court has decided to join Cases T‑619/24 and T‑621/24 for the purposes of the present judgment, in accordance with Article 68(1) of its Rules of Procedure.

 The scope of the first head of claim, seeking the alteration of the contested decisions

16      Under Article 72(3) of Regulation 2017/1001, the Court has jurisdiction both to annul and to alter the contested decision. It should be pointed out, however, that the annulment of all or part of a decision constitutes a necessary prerequisite in order to allow an alteration of that decision. Therefore, an application for alteration cannot be allowed in the absence of a claim for annulment (see, to that effect, judgment of 30 November 2006, Camper v OHIM – JC (BROTHERS by CAMPER), T‑43/05, not published, EU:T:2006:370, paragraph 99).

17      In the present case, the applications contain, besides the request for EUIPO to be ordered to pay the costs, only one head of claim, seeking the partial alteration of the contested decisions.

18      It follows that, in that head of claim, the applicant necessarily seeks not only the partial alteration of the contested decisions, but also the partial annulment thereof, which can be deduced from the submission of the applicant’s single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001 (see, to that effect, judgment of 27 February 2014, Advance Magazine Publishers v OHIM – Nanso Group (TEEN VOGUE), T‑509/12, EU:T:2014:89, paragraphs 15 and 16 and the case-law cited).

 The claim for partial annulment of the contested decisions

19      In support of its actions, the applicant raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. It claims, in essence, that the Board of Appeal committed an error of assessment by concluding that there was no likelihood of confusion in respect of the ‘day-care and elderly care facilities’ services covered by the marks applied for.

20      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.

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

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

23      In the light of those considerations, it must be examined whether, as the applicant claims, the Board of Appeal wrongly held that there was no likelihood of confusion in respect of the ‘day-care and elderly care facilities’ services covered by the marks applied for.

 The relevant public

24      The Board of Appeal considered that the ‘day-care and elderly care facilities’ services were aimed at the public at large in the European Union with a high level of attention.

25      The applicant does not dispute those assessments.

 The comparison of the signs

26      The Board of Appeal found that the marks applied for consisted, respectively, of the term ‘kimkom’ and the term ‘kimsum’ and that the earlier mark consisted of the term ‘kimpton’, and that each mark had a normal distinctive character on account of being meaningless. It then found, first, that the marks applied for and the earlier mark were visually similar to an average degree and, second, that the mark Kimkom and the earlier mark were phonetically similar to a high degree, whereas the mark Kimsum and the earlier mark were phonetically similar to an average degree. Lastly, it held that no conceptual comparison could be made given that the marks at issue were meaningless.

27      Those assessments are also not disputed by the applicant.

 The comparison of the services

28      In assessing the similarity of the goods or services concerned, 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 (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 23).

29      Other factors may also be taken into account, such as the distribution channels of the goods or services concerned or the fact that those goods or services are often sold in the same specialist sales outlets, which is likely to facilitate the perception by the relevant consumer of the close connections between them and strengthen the impression that the same undertaking is responsible for the production of those goods or provision of those services (see judgment of 2 June 2021, Himmel v EUIPO – Ramirez Monfort (Hispano Suiza), T‑177/20, EU:T:2021:312, paragraph 44 and the case-law cited).

30      Where the goods or services covered by the earlier mark include the goods or services covered by the trade mark application, those goods or services are considered to be identical (see judgment of 24 November 2005, Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, EU:T:2005:420, paragraph 34 and the case-law cited).

31      In the contested decisions, the Board of Appeal found, first, that ‘homes (retirement -); retirement homes; retirement homes services; homes for the elderly [retirement]’ covered by the contested mark Kimkom and ‘retirement home services’ covered by the contested mark Kimsum were identical to the broader earlier services of ‘provision of accommodation’, since the former are included in the latter.

32      Second, the Board of Appeal found that the services ‘“day care centers; day-care center services; nurseries and day care centers; nurseries, day-care and elderly care facilities” [covered by the marks applied for] consist of daily care for small children (in the case of nurseries, which are a form of day-care) as well as for the elderly who are no longer able to look after themselves independently (in the case of day-care and elderly care facilities)’. It compared those services to the ‘resort hotel services’ covered by the earlier mark and found that they had different natures, intended purposes and methods of use, since the skills, expertise and know-how in caring for small children and the elderly who can no longer care for themselves were different from those of providing resort hotel services. Therefore, it concluded that the services at issue were at best similar to a low degree.

33      The applicant disputes those assessments of the Board of Appeal by raising two complaints, the first relating to an incorrect interpretation of the ‘day-care and elderly care facilities’ services covered by the marks applied for and the second relating to an unjustified difference in treatment between those services and the ‘retirement home services’ covered by those marks, which resulted in a different assessment of their degree of similarity with the services covered by the earlier mark, even though they are identical.

34      By its first complaint, which is divided into two parts, the applicant claims that the Board of Appeal interpreted the ‘day-care and elderly care facilities’ services covered by the marks applied for incorrectly by holding, in the first place, that the services covering the elderly were ‘elderly day-care facilities’. However, unlike ‘day-care facilities’, ‘elderly care facilities’ are not limited to day care but also cover day and night care. Therefore, the applicant maintains that, given their nature and intended purpose, the ‘elderly care facilities’ services covered by the marks applied for cover, in whole or in part, the same services as the ‘resort hotel services’ covered by the earlier mark.

35      In the second place, the applicant claims that the ‘resort hotel services’ covered by the earlier mark consist both of services for young children and of care services for the elderly. It criticises the Board of Appeal for failing to take into account the common and growing practice of the market in ‘care hotels’, which are a combination of nursing homes and hotels or hotels specialised in people requiring care, that is to say, mainly the elderly. Therefore, it submits that the relevant public will perceive the ‘resort hotel services’ of the earlier mark and the ‘elderly care facilities’ covered by the marks applied for as having a common commercial origin.

36      By its second complaint, the applicant criticises the Board of Appeal for treating identical services differently. It claims that the Board of Appeal did not take into account the fact that, first, the ‘retirement home services’ covered by the marks applied for, which were held to be identical or very similar to the ‘provision of accommodation’ services covered by the earlier mark and, second, the ‘day-care and elderly care facilities’ services covered by the marks applied for, which were held to be similar to only a low degree to the ‘resort hotel services’ covered by the earlier mark, are, in fact, identical. Moreover, the Board of Appeal’s assessment contradicts EUIPO practice, since the Opposition Division has already held in a previous case that ‘retirement home services’ and ‘day-care and elderly care facilities’ services overlapped and were therefore identical.

37      EUIPO disputes the applicant’s arguments. As regards the first complaint, it contends, first, that the Board of Appeal did not limit the ‘elderly care facilities’ services covered by the marks applied for only to day care services. It adds that the Board of Appeal also did not base its conclusions on any distinction between day care services and night care services.

38      Second, EUIPO disputes the admissibility of the evidence produced by the applicant in order to demonstrate that the ‘resort hotel services’ covered by the earlier mark can include care services for the elderly. It also states that the alleged common and growing practice of ‘care hotels’ on the market, on which the applicant attempts to rely, is not a well-known fact and that the applicant should have demonstrated that practice during the administrative proceedings before EUIPO. However, the evidence produced before the Court, even assuming that it is admissible, does not prove that the combination of ‘resort hotel services’ and ‘elderly care facilities’ services is common on the market.

39      As regards the second complaint, EUIPO contends that the Board of Appeal is not bound by its earlier decisions or by those taken by lower-ranking adjudicating bodies. It also maintains that there is no difference in treatment in the contested decisions between ‘retirement home services’ and ‘elderly care facilities’ services, because the former have a broader scope where the main purpose is the provision of accommodation for the elderly, whereas the latter are more specific and their main purpose is care of the elderly, which is supported by the term ‘care’.

40      In so far as, according to the applicant, the error of assessment committed by the Board of Appeal essentially follows from the incorrect interpretation of ‘day-care and elderly care facilities’ services, the Court considers it appropriate to examine, first of all, the first part of the first complaint relating to that interpretation.

–       The interpretation of ‘day-care and elderly care facilities’ services

41      In the first place, it should be noted that the initial matter to be decided is whether ‘day-care and elderly care facilities’ services could be divided into two distinct services, namely, ‘day-care facilities’ and ‘elderly care facilities’, or whether they were to be understood as being an indivisible service.

42      In that regard, the applicant stated, at the hearing, that it regarded ‘day-care and elderly care facilities’ as indivisible services, in that ‘elderly care facilities’ necessarily included ‘day-care’ services. However, it accepted that, if the Court decided that ‘day-care and elderly care facilities’ were divisible into two distinct services, it would limit its action to ‘elderly care facilities’.

43      EUIPO stated, at the hearing, that ‘day-care and elderly care facilities’ could be regarded as being two distinct services.

44      In that regard, it should be noted that the first language of the application for registration of the mark Kimkom in Case T‑619/24 was English, whereas the first language of the application for registration of the mark Kimsum in Case T‑621/24 was German. Thus, the applications for registration of those marks were lodged for ‘nurseries, day-care and elderly care facilities’ services in English and ‘Verpflegungs- und Beherbergungsdienstleistungen in Kindergärten und -krippen, Tagesbetreuungseinrichtungen, Altenheimen’ in German. Moreover, the second language of the applications for registration of those two marks was German for the first mark and English for the second mark.

45      As regards the English-language versions of the applications for registration, it must be stated that ‘nurseries, day-care and elderly care facilities’ services can be understood as being distinct services. In particular, the terms ‘day-care’ and ‘elderly care facilities’ are separated by the conjunction ‘and’, which indicates that they designate two types of services, namely, first, ‘day-care facilities’, and, second, ‘elderly care facilities’.

46      That conclusion also follows from the German-language versions of the applications for registration. Although the heading ‘Verpflegungs- und Beherbergungsdienstleistungen in Kindergärten und -krippen, Tagesbetreuungseinrichtungen, Altenheimen’ translates literally as ‘catering and accommodation services in nurseries and creches, day-care facilities and retirement homes’, the terms ‘Tagesbetreuungseinrichtungen’ (‘day-care facilities’ in English) and ‘Altenheimen’ (‘retirement homes’ in English) are separated by a comma, indicating the distinct destination of the services.

47      It follows that ‘day-care and elderly care facilities’ services must be regarded as two distinct services covering ‘day-care facilities’ and ‘elderly care facilities’.

48      Therefore, since the applicant stated at the hearing that it waived the right to challenge the registration of the marks applied for in respect of ‘day-care facilities’ services if the Court considered that those services were distinct from ‘elderly care facilities’ services, the present action must be regarded as being limited merely to the challenge to the registration of the marks applied for in respect of ‘elderly care facilities’ services.

49      In the second place, as regards the first part of the applicant’s first complaint relating to whether ‘elderly care facilities’ services are limited to day care, it must be stated that the parties agree, both in their written pleadings and at the hearing, that those services cover both day care and night care. Moreover, it is not apparent from the contested decisions or from anything in the case file that those services must be understood as relating only to day-care facilities.

50      In the light of the foregoing concerning the interpretation that must be given to ‘elderly care facilities’ services, the Court considers it appropriate to examine the applicant’s second complaint relating to the difference in treatment between those services and the allegedly identical ‘retirement home services’.

–       The difference in treatment between ‘elderly care facilities’ services and ‘retirement home services’

51      By its second complaint, the applicant criticises the Board of Appeal for failing to take into account the fact that ‘elderly care facilities’ services and ‘retirement home services’ covered by the marks applied for were identical. That failure, which is contrary to EUIPO practice, resulted in those services being treated differently with regard to their degree of similarity with the services covered by the earlier mark.

52      First of all, as regards the taking into account of the Opposition Division’s decision of 12 June 2024 in which it found that ‘the contested “day-care and elderly care facilities” [were] included in, or [overlapped] with, the broad category of the opponent’s “retirement home services” [therefore] they [were] identical’, it should be noted that the Boards of Appeal are not bound by the decisions of lower-ranking adjudicating bodies of EUIPO (judgment of 22 May 2014, NIIT Insurance Technologies v OHIM (EXACT), T‑228/13, not published, EU:T:2014:272, paragraph 48).

53      Moreover, the decisions concerning registration of a sign as an EU trade mark which the Boards of Appeal of EUIPO are led to take under Regulation 2017/1001 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of those decisions must be assessed solely on the basis of that regulation as interpreted by the EU judicature and not on the basis of a previous decision-making practice (see, to that effect, judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65).

54      Next, as regards the assessment of ‘elderly care facilities’ services as compared to the ‘retirement home services’ covered by the marks applied for, it should be noted that, at the hearing, EUIPO recognised that, by considering the former services as being distinct from ‘day-care facilities’ services, any distinction between ‘elderly care facilities’ services and ‘retirement home services’ was artificial.

55      In that regard, it must be stated that ‘elderly care facilities’ services and ‘retirement home services’ belong to Class 43, which, according to the explanatory note to that class in the eleventh edition of the Nice Classification applicable in the present case, ‘includes mainly services provided in relation to the preparation of food and drink for consumption, as well as services for providing temporary accommodation’.

56      ‘Retirement homes services’ are provided in medico-social establishments intended for the elderly, providing them with accommodation, medical and paramedical care, daily assistance and social and recreational activities. The purpose of those establishments is not, therefore, limited only to providing accommodation for the elderly, but also extends to ‘care’ in the broad sense, since most of the elderly persons live there day and night, often because they can no longer look after themselves and live independently.

57      As the contested decisions correctly make clear, ‘elderly care facilities’ services also cover services intended for the elderly, providing them in principle with both accommodation and care where they are no longer able to look after themselves independently. Moreover, in view of the generic nature of the wording of those services, it may be considered that they cover various modes of reception of elderly persons, whether short-term or long-term, during the day or at night (see paragraph 49 above), for the purpose of providing them with care.

58      The ‘elderly care facilities’ services and ‘retirement home services’ are therefore aimed at the same public of elderly persons who are no longer independent and able to look after themselves. Those services also offer daily care aimed at improving the quality of life of those persons through shared services, such as assistance with daily living, social activities or the support of specialised staff. In so far as those services are intended for the same persons and have the same purpose and the same nature, they must be regarded as being identical.

59      That conclusion is supported by the wording used in the original English- and German-language versions of the applications for registration of the marks applied for, where the English is ‘elderly care facilities’ and where the German ‘Verpflegungs- und Beherbergungsdienstleistungen in Altenheimen’ translates literally into English as ‘catering and accommodation services in retirement homes’.

60      Although there is some inconsistency between the English and German terms used, that follows, as EUIPO acknowledged at the hearing, from the fact that Kamstar established the list of services covered by the marks applied for using the TMclass tool made available by EUIPO, in which ‘nurseries, day-care and elderly care facilities’ services are listed in German as ‘Verpflegungs- und Beherbergungsdienstleistungen in Kindergärten und -krippen, Tagesbetreuungseinrichtungen, Altenheimen’ (literally ‘catering and accommodation services in nurseries and creches, day care facilities, retirement homes’ in English). Therefore, there are no substantial differences between ‘elderly care facilities’ services and ‘catering and accommodation services in retirement homes’.

61      Lastly, it must be determined whether, by concluding that there are different degrees of similarity between the services covered by the earlier mark and the services covered by the marks applied for, although ‘elderly care facilities’ services and ‘retirement home services’ covered by the marks applied for are identical, the Board of Appeal committed an error of assessment capable of vitiating the legality of the contested decisions.

62      In the present case, it should be noted, as is clear from paragraphs 31 and 32 above, that the Board of Appeal found, first, that, in particular, the ‘retirement home services’ covered by the marks applied for fell within the broader ‘provision of accommodation’ services covered by the earlier mark, and that, therefore, they were identical to the latter services. Second, it held that, in particular, the ‘elderly care facilities’ services covered by the marks applied for were, at most, similar to a low degree to the ‘resort hotel services’ covered by the earlier mark.

63      In that regard, admittedly, the mere fact that there is a similarity between two services and that one of them looks like a third service is not sufficient to permit the conclusion, by analogy, that all those services must be similar (see, to that effect, judgment of 25 September 2018, Grendene v EUIPO – Hipanema (HIPANEMA), T‑435/17, not published, EU:T:2018:596, paragraph 73). However, it follows from paragraph 30 above that, where a service is included in another service with which it is compared, those services must be regarded as being identical.

64      Thus, where a first service covered by an earlier mark and a second service covered by a mark applied for are held to be identical because, in their essence, they broadly overlap and the services shared by those two categories of service are the main reason why the second service is identical to a third service covered by the mark applied for, that third service must also be regarded as identical to the first service covered by the earlier mark.

65      Consequently, in so far as, first, the Board of Appeal rightly held that the ‘retirement home services’ covered by the marks applied for were identical to the broader ‘provision of accommodation’ services covered by the earlier mark, in that all those services consisted mainly in providing accommodation for the elderly, and, second, as is clear from paragraphs 56 to 58 above, ‘elderly care facilities’ services and ‘retirement home services’ have the same purpose and consist in the provision of care and accommodation for the elderly, the Board of Appeal committed an error of assessment by adopting different conclusions as to the degree of similarity of the services covered by the earlier mark to the ‘retirement home services’ and ‘elderly care facilities’ covered by the marks applied for, even though those services covered by the marks applied for were identical.

66      In the light of the foregoing, the second complaint of the single plea in law must be upheld and, therefore, the contested decisions annulled in so far as they dismiss the appeals concerning ‘elderly care facilities’ services covered by the marks applied for, without there being any need to examine the second part of the applicant’s first complaint, relating to the similarity between those services and the ‘resort hotel services’ covered by the earlier mark and the admissibility of the evidence provided by the applicant in order to demonstrate that similarity.

 The claim for alteration of the contested decisions

67      By the first head of claim, the applicant requests that the Court partially alter the contested decisions by finding, in essence, that there is a likelihood of confusion with regard to the ‘elderly care facilities’ services covered by the marks applied for.

68      In that regard, it should be recalled that the power to alter decisions, conferred on the Court under Article 72(3) of Regulation 2017/1001, does not have the effect of conferring on it the power to carry out an assessment on which the Board of Appeal has not yet adopted a position. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take (judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 72).

69      In the present case, it should be noted that the Board of Appeal adopted a position, in the contested decisions, on the comparison of the ‘elderly care facilities’ services covered by the marks applied for with the services covered by the earlier mark, and therefore the Court is in a position to rule on that point.

70      As is clear from paragraph 64 above, the Board of Appeal should have concluded that ‘elderly care facilities’ services, which are identical to ‘retirement home services’, fell, on the same basis as the latter services, within the ‘provision of accommodation’ services covered by the earlier mark, and were therefore identical to the latter.

71      In those circumstances, the contested decision in Case T‑619/24 must be altered, by concluding that, in view of the identity of the ‘elderly care facilities’ services covered by the mark Kimkom with the services covered by the earlier mark, the average degree of visual similarity, the high degree of phonetic similarity, the impossibility of a conceptual comparison of the marks at issue and the normal distinctiveness of the earlier mark, there is a likelihood of confusion on the part of the relevant public in respect of ‘elderly care facilities’ services, and, therefore, by upholding the opposition as regards those services and by rejecting the application for registration of the mark Kimkom in respect of those services.

72      Similarly, the contested decision in Case T‑621/24 must be altered, by concluding that, in view of the identity of the ‘elderly care facilities’ services covered by the mark Kimsum with the services covered by the earlier mark, the average degree of visual similarity, the average degree of phonetic similarity, the impossibility of a conceptual comparison of the marks at issue and the normal distinctiveness of the earlier mark, there is a likelihood of confusion on the part of the relevant public in respect of ‘elderly care facilities’ services, and, therefore, by upholding the opposition as regards those services and by rejecting the application for registration of the mark Kimsum in respect of those services.

 Costs

73      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

74      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.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Joins Cases T‑619/24 and T‑621/24 for the purposes of the judgment;

2.      Partially annuls the decisions of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 September 2024 (Cases R 2369/2023-1 and R 2370/2023-1) and alters them to the effect that the oppositions to registration of the word marks Kimkom and Kimsum as EU trade marks are upheld as regards the ‘elderly care facilities’ services in Class 43 and that the applications for registration of those marks are rejected in respect of those services;

3.      Orders EUIPO to bear its own costs and to pay those incurred by Kimpton Hotel & Restaurant Group LLC.

Delivered in open court in Luxembourg on 14 January 2026.

*      Language of the case: English.