JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

10 June 2026 (*)

( EU trade mark – Opposition proceedings – Application for the EU word mark CLUSTER COLLECTOR – Earlier EU word mark THE COLLECTOR – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )

In Case T‑673/25,

Wazdan Innovations ltd., established in Ta’Xbiex (Malta), represented by D. Hasik, 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 being

Push Gaming Product ltd., established in Ta’Xbiex,

THE GENERAL COURT (Eighth Chamber),

composed of I. Gâlea, President, M.J. Costeira (Rapporteur) and T. Tóth, 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, Wazdan Innovations ltd., seeks the annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 July 2025 (Case R 2146/2024‑1) (‘the contested decision’).

 Background to the dispute

2        On 6 July 2023, the predecessor-in-title to the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the word sign CLUSTER COLLECTOR.

3        The mark applied for covered goods and services in Classes 9, 28, 41 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, corresponding, for each of those classes, to the following description:

–        Class 9: ‘Sound transmitting apparatus; Apparatus for the transmission of images; Apparatus for the reproduction of images; Sound reproduction apparatus; Apparatus for recording images; Sound recording apparatus; Coin-operated mechanisms; Computer gaming software; Information technology and audiovisual equipment; Computer programs, downloadable; Downloadable software; Computer programmes for interactive television and for interactive games and/or quizzes; Software and applications for mobile devices’;

–        Class 28: ‘Counters [discs] for games; Table-top games; Amusement game machines; Gaming machines for gambling; Coin-operated amusement machines; Arcade game machines; Dice; Apparatus for games; Automatic coin-operated games; Amusement machines, automatic and coin-operated; Coin-operated amusement gaming machines; Mechanical games; Hand-held consoles for playing video games; Games; Arcade games; Electronic games’;

–        Class 41: ‘Casino, gaming and gambling services; Gambling services; On-line gaming services; Electronic games services; Arcade game services; Gaming services for entertainment purposes; Electronic game services provided by means of the internet; Wagering services; Game services provided online from a computer network; Entertainment information; Interactive computer game services; Organisation of sporting events; Amusement arcades; Bookmaking [turf accountancy]; Betting services; Providing casino facilities [gambling]; Entertainment services; Cultural activities; Organising of entertainment competitions’;

–        Class 42: ‘Design of games; Design and development of computer hardware; Platforms for gaming as software as a service [SaaS]; Software as a service [SaaS]; Rental of computer software and programs; Rental of computer game software; Development of hardware for video games; Development of computer hardware for computer games; Design of hardware for processing and distribution of multimedia contents’.

4        On 9 October 2023, the other party to the proceedings before the Board of Appeal, Push Gaming Product ltd., filed a notice of opposition to registration of the mark applied for in respect of all of the goods and services referred to in paragraph 3 above.

5        The opposition was based on the earlier EU word mark THE COLLECTOR, registered on 17 October 2023 under the number 18 436 384 in respect of the following goods and services:

–        Class 9: ‘Software; interactive computer systems; application software; computer programs, downloadable; computer software for advertising; application software for mobile phones; mobile software; multimedia software; downloadable software; media content; downloadable computer game programs; computer gaming software; none of the aforesaid goods for use in connection with multi-channel digital recorders for capturing, viewing, storing and transferring voice, video and data, except goods in the gaming, gambling and betting industry’;

–        Class 41: ‘Casino, gaming and gambling services; providing casino facilities [gambling]; leasing of casino games; services for the operation of computerised bingo; providing of casino and gaming facilities; conducting multiple player games of chance; betting services; game services provided online from a computer network; none of the aforesaid services for use in connection with multi-channel digital recorders for capturing, viewing, storing and transferring voice, video and data, except services in the gaming, gambling and betting industry’;

–        Class 42: ‘Hosting services, software as a service, and rental of software; computer software consultancy; providing information, advice and consultancy services in the field of computer software; design services; IT services; computer programming; software development, programming and implementation; design of games; none of the aforesaid services for use in connection with multi-channel digital recorders for capturing, viewing, storing and transferring voice, video and data, except services in the gaming, gambling and betting industry’.

6        The ground relied on in support of the opposition was that referred to 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).

7        On 8 October 2024, the Opposition Division upheld the opposition in part and rejected the application for registration for all of the goods and services covered by the mark applied for, with the exception of ‘coin-operated mechanisms’ in Class 9, ‘counters [discs] for games’ in Class 28 and ‘bookmaking [turf accountancy]; cultural activities’ in Class 41, in respect of which it registered the mark applied for.

8        On 5 November 2024, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division, in so far as it had upheld the opposition.

9        By the contested decision, the Board of Appeal dismissed the appeal, 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 goods and services in respect of which the application for registration had been rejected by the Opposition Division.

 Forms of order sought

10      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO and, as the case may be, the intervener to pay the costs, including those relating to the proceedings before EUIPO.

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.

 Law

12      In support of the action, the applicant relies on three pleas in law, the first alleging infringement of Article 8(1)(b) of Regulation 2017/1001, the second alleging breach of the principles of equal treatment, sound administration and legitimate expectations, and the third alleging failure to state reasons in the contested decision. It is appropriate to begin by examining the third plea.

 The plea in law alleging a failure to state reasons in the contested decision

13      According to the applicant, the reasoning underlying the contested decision does not meet the requirements of clarity and consistency arising from the first sentence of Article 94(1) of Regulation 2017/1001. In particular, according to the applicant, the Board of Appeal’s line of argument relating to the global assessment of the likelihood of confusion is so vague that it does not make it possible to identify specific arguments supporting the conclusion that such a likelihood of confusion exists.

14      EUIPO disputes the applicant’s arguments.

15      As a preliminary point, it should be recalled that the obligation to state reasons laid down in Article 94(1) of Regulation 2017/1001 has the same scope as that deriving from Article 296 TFEU, as interpreted by settled case-law. According to that case-law, the statement of reasons must disclose, clearly and unequivocally, the reasoning of the author of the measure, in such a way as to enable, on the one hand, interested parties to ascertain the reasons for the measure in order to enable them to protect their rights, and, on the other hand, the EU judicature to exercise its power to review the legality of the decision (see judgment of 13 May 2020, Koenig & Bauer v EUIPO (we’re on it), T‑156/19, not published, EU:T:2020:200, paragraph 51 and the case-law cited).

16      The obligation to state reasons in decisions is an essential procedural requirement which must be distinguished from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, those errors will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (see judgment of 20 February 2013, Langguth Erben v OHIM (MEDINET), T‑378/11, EU:T:2013:83, paragraph 15 and the case-law cited).

17      In the present case, in paragraphs 83 to 89 of the contested decision, the Board of Appeal carried out the global assessment of the likelihood of confusion, noting the identity or similarity of the goods and services at issue, as well as an average degree of visual and phonetic similarity between the signs at issue and at least an average degree of conceptual similarity. Despite the level of attention of the relevant public, which may vary from average to high, it found that the differences in length and pronunciation between the signs were due to weak or non-distinctive elements and would be attenuated in the mind of the public because of the impact of the imperfect recollection of the marks, especially since the goods and services at issue could be marketed through the same distribution channels.

18      In the light of those grounds, it must be held that the contested decision disclosed, clearly and unequivocally, the considerations forming the basis of the global assessment of the likelihood of confusion, the applicant having thus been in a position to ascertain the factors of that assessment, and, moreover, was able to challenge them in the context of the first plea.

19      Accordingly, the complaint alleging that the grounds relating to the global assessment of the likelihood of confusion are inadequate must be rejected.

20      As to the remainder, as regards the claims relating to the allegedly inconsistent or illogical reasoning of the Board of Appeal concerning the distinctive character of the signs at issue and the weakness of the element ‘cluster’ of the mark applied for, which was allegedly disregarded in the comparison of the signs and the assessment of which is not supported by any document or source capable of substantiating its conclusions, it must be noted that the arguments put forward in that regard by the applicant correspond, in essence, to the complaints raised in support of the first plea and call into question the merits of the grounds of the contested decision, and not any failure to state reasons. Consequently, they must be examined in the context of the assessment of the plea alleging infringement of Article 8(1)(b) of Regulation 2017/1001.

21      It follows that the plea in law alleging failure to state reasons in the contested decision must be rejected.

 The plea in law alleging infringement of Article 8(1)(b) of Regulation 2017/1001

22      The applicant submits that the Board of Appeal made an error of assessment in finding that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001, in particular in so far as it did not recognise the weak distinctive character of the earlier mark and the highly distinctive character of the mark applied for, while disregarding the visual, phonetic and conceptual differences between the signs at issue.

23      EUIPO disputes the applicant’s arguments.

24      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.

25      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).

26      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 two 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).

27      Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods and services in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (see, to that effect, judgment 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 76 and the case-law cited).

28      It is in the light of the abovementioned principles that the present plea must be examined.

 The relevant public

29      In paragraphs 23 to 26 of the contested decision, the Board of Appeal endorsed the Opposition Division’s assessment that the goods and services at issue were aimed at the general public, as well as at business customers with specific knowledge or expertise, with the result that the level of attention of the public could vary from average to high depending on the price, sophistication and specialised nature, or terms and conditions of the goods and services purchased. The Board of Appeal also found that the relevant territory in the present case was that of the European Union.

30      There is no reason to call into question those findings, which, moreover, have not been disputed by the applicant.

 The comparison of the goods and services

31      According to the 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).

32      In the present case, the Board of Appeal upheld the Opposition Division’s findings relating to the similarity of the goods in Class 28 and the identity of the services in Class 42, also finding that the goods in Class 9 and the services in Class 41 were in part similar and in part identical.

33      As a preliminary point, it should be noted that, in paragraph 52 of the contested decision, the Board of Appeal concluded that the services in Class 42 were in part identical and in part similar. There is no reason to call into question that assessment, which, moreover, is not disputed by the applicant.

34      As regards, first of all, the alleged dissimilarity of the goods in Class 9, the applicant claims, in essence, that the Board of Appeal misinterpreted the nature of the gaming software covered by the earlier mark, which is different from the nature of physical objects and equipment such as apparatus for recording sound or images.

35      Next, in so far as concerns the comparison between the goods in Class 28 covered by the mark applied for and those in Class 9 covered by the earlier mark, the applicant simply claims that the mere fact that certain goods have the same distribution channels cannot give rise to similarity between them.

36      Lastly, as regards the services in Class 41, the applicant disputes the similarity of the ‘organisation of sporting events’ services covered by the mark applied for and the ‘gambling services’ covered by the earlier mark. According to the applicant, although some collaboration is possible, it is rare for sporting events and betting to be organised by the same entities and it cannot be said that those activities go together as a rule, which is the prerequisite for the application of the principle of complementarity of goods or services.

37      EUIPO disputes the applicant’s arguments.

38      As regards, first of all, the goods in Class 9, the applicant disputes the Board of Appeal’s assessment that apparatus for the transmission or reproduction of sound or images may be used in conjunction with computer gaming software and are often complementary to it, since gaming software requires compatible hardware to function.

39      In that regard, it should be noted 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 12 March 2020, Sumol + Compal Marcas v EUIPO – Heretat Mont-Rubi (SUM011), T‑296/19, not published, EU:T:2020:93, paragraph 41 and the case-law cited).

40      Furthermore, as was pointed out in paragraph 35 of the contested decision, software consists of programs which control the operation of a machine and which enable it to perform a desired sequence of operations. It follows that a program must be understood in relation to the operations which it carries out and therefore in relation to its function. Thus, the consumer will be guided primarily by the specific function of the product rather than by its nature (judgment of 30 June 2021, Zoom v EUIPO – Facetec (ZOOM), T‑204/20, not published, EU:T:2021:391, paragraph 51).

41      Therefore, in the light of the case-law referred to in paragraphs 39 and 40 above, it must be held that the difference in nature relied on by the applicant between the apparatus covered by the mark applied for, which are physical goods, and the computer gaming software covered by the earlier mark, which are digital goods, does not call into question their complementary nature, noted by the Board of Appeal in paragraph 36 of the contested decision, in so far as that apparatus and software are mutually necessary for their use and that the computer gaming software covered by the earlier mark is specifically intended to record, capture and transfer videos and data in the gaming, gambling and betting industry.

42      Furthermore, as the Board of Appeal correctly pointed out, the apparatus and software in question may be sold through the same distribution channels and addressed to the same public, with the result that consumers may be led to think that they come from the same manufacturers.

43      The Board of Appeal therefore did not make an error of assessment in finding that there was a similarity between the apparatus and software in Class 9.

44      As regards, next, the goods in Class 28 covered by the mark applied for, the applicant disputes the Board of Appeal’s finding that they are similar to the goods in Class 9 covered by the earlier mark, on the ground that the mere fact that certain goods have the same distribution channels cannot give rise to similarity between them.

45      In that regard, as the Board of Appeal pointed out in paragraph 42 of the contested decision, the market for games and toys had evolved considerably, with board games now usually having an electronic counterpart, downloaded onto a computer or mobile phone, and numerous connected toys having appeared on the market, with the result that the dividing line between the games in Class 9 and those in Class 28 has become extremely tenuous (see judgment of 16 December 2020, Production Christian Gallimard v EUIPO – Éditions Gallimard (PCG CALLIGRAM CHRISTIAN GALLIMARD), T‑863/19, not published, EU:T:2020:632, paragraph 61 and the case-law cited).

46      In that context, the Board of Appeal did not make an error of assessment in finding, with regard to ‘table-top games; dice; mechanical games’ in Class 28 and ‘software’ in Class 9 intended for the gaming, gambling and betting industry, that physical and digital gaming goods are increasingly sold by the same retailers, whether online marketplaces or specialty gaming stores, so that they have the same distribution channels and the same public, given that they may be sold, for example, for amusement, to consumers who enjoy gaming.

47      It follows that the Board of Appeal correctly found that the goods at issue were similar, relying not only on the existence of distribution channels common to those categories of goods, contrary to what the applicant claims, but also on the existence of common purposes and a common public.

48      As regards, lastly, the services in Class 41, the applicant disputes the Board of Appeal’s finding that the ‘organisation of sporting events’ services are similar to ‘gambling’ services, arguing that those activities do not, as a general rule, go together, which is the prerequisite for the application of the principle of complementarity of goods or services.

49      On that point, in accordance with the case-law cited in paragraph 31 above, it must be borne in mind that, in order to assess the similarity of the services at issue, several factors should be taken into account, including their nature, their intended purpose, their method of use and the distribution channels of those services, since their complementary nature is not the only indicator of their possible similarity.

50      In that regard, although ‘gambling’ services are not indispensable to the ‘organisation of sporting events’ and are therefore not complementary within the meaning of the case-law cited in paragraph 39 above, and although they are only rarely provided by the same entities, as the applicant submits, it must be noted that the applicant did not, however, dispute before the Court the Board of Appeal’s assessments relating to the existence of a common public and distribution channels common to those activities, nor the fact that they are associated in practice, in so far as many gambling undertakings sponsor sporting events and offer betting services directly linked to live sport, thus contributing to the increasing integration of sports betting within the sports industry, as was correctly pointed out in paragraph 48 of the contested decision.

51      Those assessments by the Board of Appeal are sufficient in the present case to find that ‘gambling’ services and ‘organisation of sporting events’ services in Class 41 are similar, notwithstanding the lack of complementarity.

52      Accordingly, all the Board of Appeal’s assessments relating to the comparison of the goods and services at issue must be upheld, concluding that they are in part similar and in part identical.

 The comparison of the signs

53      The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not 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).

54      In the present case, the marks at issue are, first, the earlier EU word mark THE COLLECTOR and, second, the EU word mark applied for CLUSTER COLLECTOR.

55      Before addressing 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 marks at issue.

–       The distinctive and dominant elements of the marks at issue

56      For the purpose of assessing 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 (judgments of 13 June 2006, Inex v OHIM – Wiseman (Representation of a cowhide), T‑153/03, EU:T:2006:157, paragraph 35, and of 13 December 2007, Cabrera Sánchez v OHIM – Industrias Cárnicas Valle (el charcutero artesano), T‑242/06, not published, EU:T:2007:391, paragraph 51).

57      Where some elements are descriptive of the goods and services in respect of which the mark is protected or the goods and services covered by the application for registration, those elements are recognised as having only a low, or even very low, distinctive character (see, to that effect, judgments of 12 September 2007, Koipe v OHIM – Aceites del Sur (La Española), T‑363/04, EU:T:2007:264, paragraph 92, and of 13 December 2007, el charcutero artesano, T‑242/06, not published, EU:T:2007:391, paragraph 52). Most often, it will be possible to recognise those elements as having distinctive character only because of their combination with the other elements of the mark. Owing to their low, or even very low, distinctive character, descriptive elements of a trade mark are not generally regarded by the public as being dominant in the overall impression conveyed by that mark, unless, particularly because of their position or their size, they appear likely to make an impression on the public and to be remembered by it (see, to that effect, judgment of 13 December 2007, el charcutero artesano, T‑242/06, not published, EU:T:2007:391, paragraph 53 and the case-law cited).

58      In the present case, the Board of Appeal recognised the distinctive character of the element ‘collector’, which is common to the marks at issue, by finding that it had no clear meaning in relation to the goods and services concerned, even though it had meaning for the English-speaking public.

59      As regards the element ‘the’ of the earlier mark, the Board of Appeal found that, as a definite article, it was devoid of any distinctive character and, in view of the length of the elements making up the earlier sign, it concluded that the element ‘collector’ was dominant within that sign.

60      As regards the element ‘cluster’ of the sign applied for, the Board of Appeal found that it was weakly distinctive, since it could describe typical characteristics of games or games-related services and was used to designate, for example, a group of players or a group of elements in strategy games. It concluded that the sign applied for had, overall, an average degree of distinctiveness and that neither of its elements was more dominant than the other.

61      The applicant disputes, first, the distinctive character of the word element ‘collector’, criticising the Board of Appeal for not having taken into consideration its arguments concerning the ‘dilution’ of the word ‘collector’ in the gaming and gambling industry. In that regard, the applicant relies on the evidence which it submitted at the stage of the administrative proceedings before EUIPO and which, in its view, demonstrates the widespread use of marks comprising that element in the territory of the European Union.

62      Second, the applicant submits that the mark applied for has a highly distinctive character in relation to the unusual and fanciful combination of the elements ‘cluster’ and ‘collector’. In that context, it complains that the Board of Appeal failed to take account of the element ‘cluster’ by concluding that it was descriptive and weakly distinctive, without providing any explanation other than that based on its lexical definition and without referring to any document or any source supporting such reasoning.

63      EUIPO disputes the applicant’s arguments.

64      As a preliminary point, as EUIPO correctly pointed out, it should be noted that, in the context of the assessment of the likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001, the enhanced distinctiveness of a sign plays a role in relation to the earlier mark and not in relation to the later mark (see, to that effect, judgments of 20 October 2016, Clover Canyon v EUIPO – Kaipa Sportswear (CLOVER CANYON), T‑693/15, not published, EU:T:2016:620, paragraph 47, and of 14 November 2019, Société des produits Nestlé v EUIPO – Jumbo Africa (Representation of a human figure on an escutcheon), T‑149/19, not published, EU:T:2019:789, paragraph 40 and the case-law cited).

65      It follows that the applicant’s argument based on the allegedly highly distinctive character of the mark applied for, due to the unusual and fanciful combination of the elements ‘cluster’ and ‘collector’, has no bearing on the assessment of the distinctive character of the earlier mark for the purpose of examining the likelihood of confusion.

66      As regards, next, the alleged lack of distinctive character of the common element ‘collector’, which is said to be due to the widespread use of marks containing that element on the EU market, it should be noted that the applicant referred generally, in paragraphs 33 and 34 of the application, to the observations and screenshots of websites which it had submitted in the administrative proceedings before EUIPO, without providing additional details in that regard and without attaching the documents in question to the application.

67      On that point, it must be borne in mind, in accordance with settled case-law, that it is not for the Court to seek and identify in EUIPO’s administrative file the relevant information to which the parties’ pleadings refer (see judgment of 24 September 2025, Tamasu Butterfly Europa v EUIPO – Domu Brands (BTFY), T‑326/24, not published, EU:T:2025:892, paragraph 62 and the case-law cited).

68      It follows that the general reference to the observations and evidence submitted by the applicant in the administrative proceedings before EUIPO, as set out in paragraphs 33 and 34 of the application, is inadmissible.

69      In any event, in accordance with the case-law cited in paragraph 27 above, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union.

70      In that regard, it should be noted that the evidence of alleged genuine or widespread use submitted by the applicant in the administrative proceedings before EUIPO consisted, first, of a list of earlier EU trade marks and, second, of a set of internet links and screenshots of websites or online games including the word element ‘collector’.

71      As the Board of Appeal correctly pointed out in paragraphs 60 to 63 of the contested decision, that evidence did not support the conclusion that there was actual and widespread use of the element ‘collector’ throughout the European Union.

72      First, in so far as the applicant relies on earlier EU trade marks containing that element, the production of a mere list of trade marks registered in the territory of the European Union is not sufficient to prove actual use of the marks referred to therein (see, to that effect, judgments of 5 May 2017, Messe Friedrichshafen v EUIPO – El Corte Inglés (Out Door), T‑224/16, not published, EU:T:2017:314, paragraph 53, and of 11 February 2026, Nutris We care about you v EUIPO – MEDIS (ProbioDefend), T‑209/25, not published, EU:T:2026:114, paragraph 51 and the case-law cited).

73      Second, as regards the internet links and screenshots provided by the applicant, the Board of Appeal correctly found, in paragraph 62 of the contested decision, that it was not in a position to assess the extent of the presence of the word ‘collector’ on the EU market on the basis of a limited number of examples of websites drafted in English, without having further details concerning the target public or the intensity of its use in the territory of the European Union.

74      It follows that the applicant has not established that the element ‘collector’ lacks distinctive character.

75      Therefore, the Board of Appeal did not make an error of assessment in finding, in paragraphs 58 and 68 of the contested decision, that the common element ‘collector’ had distinctive character in the light of its lexical definition, on the ground that that element had no clear meaning in relation to the goods and services covered by the marks at issue.

76      Furthermore, in so far as the Board of Appeal is criticised for having found the word element ‘cluster’ to be descriptive and weakly distinctive solely on the basis of its lexical definition, it should be noted that the applicant does not dispute the accuracy of the definition adopted in paragraph 57 of the contested decision, according to which the word ‘cluster’ designates a number of persons or things grouped together, that definition being, moreover, consistent with those relied on by the applicant at the stage of the administrative proceedings before EUIPO.

77      Furthermore, the applicant has not put forward any argument capable of calling into question the Board of Appeal’s assessment that, in the light of that definition, the word element ‘cluster’ is used to designate, for example, a group of players or a group of elements in strategy games and may describe characteristics typical of games or games-related services.

78      Since that assessment was not vitiated by error, the Board of Appeal correctly found that the word element ‘cluster’ was descriptive with regard to some of the goods and services at issue, in order to conclude that it was weakly distinctive.

–       The visual and phonetic comparison

79      In paragraphs 70 to 72 of the contested decision, the Board of Appeal found that the signs at issue had in common the distinctive element ‘collector’ and differed in their elements ‘the’ and ‘cluster’, which have different lengths and sounds. Although placed at the beginning of the signs, it found that the element ‘the’ was devoid of distinctive character, whereas the element ‘cluster’ had only a weak distinctive character, and that, since they were not dominant, those elements had only a limited visual and phonetic impact. In view of the common distinctive element ‘collector’, which is dominant within the earlier sign, and in the absence of any dominant element in the sign applied for, the Board of Appeal concluded that the signs at issue were, as a whole, visually and phonetically similar to an average degree.

80      The applicant disputes the limited impact of the element ‘cluster’, claiming that it will be perceived first by the public when faced with the sign applied for. According to the applicant, it follows that that element has a great impact on the lack of similarity between the signs at issue.

81      In that regard, the applicant submits that, for word marks, the visual comparison is based on an analysis of the number and sequence of letters or characters, the position of the identical letters or characters, the number of words and the structure of the signs, in particular where the average consumer perceives a sign as a whole and does not proceed to analyse its various details. Therefore, the signs at issue cannot be regarded as similar, since even signs of the same length may be regarded as different.

82      In addition to the visual difference, the applicant submits that the signs at issue also differ phonetically, given that the overall phonetic impression produced by a sign is particularly influenced by the number and sequence of its syllables, the rhythm and intonation common to both signs also playing an important role in phonetic perception. In that regard, it claims that the signs at issue are of a different length, intonation and rhythm, the earlier mark being pronounced quickly, whereas the contested mark is longer and its rhythm is more fluid.

83      EUIPO disputes the applicant’s arguments.

84      As regards the applicant’s arguments alleging visual and phonetic differences, relating, first, in essence, to the difference in length and to the different number of characters comprising the signs at issue and, second, to their phonetic dissimilarity due to the different pronunciation or intonation, it must be noted that the Board of Appeal duly took those differences into account in paragraphs 71 and 84 of the contested decision, while qualifying their impact in the light of the weak distinctive character of the element ‘cluster’ and the lack of distinctive character of the element ‘the’.

85      On the latter point, as regards the applicant’s argument that the consumer is generally deemed to pay greater attention to the beginning of a mark than to its end, it must be borne in mind that that conclusion cannot apply in all cases or call into question the principle that the examination of the similarity of the marks must take into account the overall impression created by them (see judgments of 21 December 2021, Magic Box Int. Toys v EUIPO – KMA Concepts (SUPERZINGS), T‑549/20, not published, EU:T:2021:935, paragraph 43 and the case-law cited, and of 11 October 2023, Pascoe pharmazeutische Präparate v EUIPO – Novartis Pharma (PASCELMO), T‑435/22, not published, EU:T:2023:610, paragraph 45 and the case-law cited).

86      In that regard, it should also be borne in mind that the greater or lesser degree of distinctiveness of the elements making up the marks at issue is one of the relevant factors in assessing the similarity of the signs. The descriptive, non-distinctive or weakly distinctive elements of a composite trade mark generally carry less weight in the analysis of the similarity between the signs than the elements of greater distinctiveness, which are also more able to dominate the overall impression given by that mark (see judgment of 10 November 2021, Nissan Motor v EUIPO – VDL Groep (VDL E-POWER), T‑755/20, not published, EU:T:2021:769, paragraph 40 and the case-law cited).

87      In the present case, as is apparent from paragraphs 66 to 78 above, the applicant has not succeeded in calling into question the merits of the Board of Appeal’s findings that the element common to the signs at issue is distinctive, whereas the element ‘cluster’ of the sign applied for has only a weak distinctive character. Furthermore, it is not disputed that the element ‘the’ of the earlier sign is devoid of any distinctive character.

88      The Board of Appeal did not therefore make an error of assessment in taking into account the unequal distinctive character of the elements making up the signs at issue in order to conclude that the elements ‘the’ and ‘cluster’ had only a limited impact on the overall visual and phonetic impression.

89      Consequently, there is no need to call into question the Board of Appeal’s finding that, in view of the common distinctive element ‘collector’, the signs at issue are visually and phonetically similar to an average degree.

–       The conceptual comparison

90      In paragraphs 73 to 75 of the contested decision, the Board of Appeal found that the non-distinctive element ‘the’ of the earlier sign had only a limited impact on the conceptual comparison. As regards the element ‘cluster’ of the sign applied for, it found that it merely qualified the distinctive element ‘collector’ and that, as a weakly distinctive element, that element would not be accentuated conceptually. The Board of Appeal concluded that there was, overall, at least an average degree of conceptual similarity between the signs at issue.

91      The applicant submits that the element ‘cluster’ was omitted in the context of the conceptual comparison, which prevented the Board of Appeal from assessing the semantic content of the sign applied for.

92      EUIPO disputes the applicant’s arguments.

93      At the outset, it should be noted that the Board of Appeal duly took into account the meaning of the element ‘cluster’ of the sign applied for, in finding that that element qualified the element ‘collector’. It follows that the argument that the element ‘cluster’ was omitted from the conceptual comparison has no factual basis.

94      In that regard, as EUIPO correctly submits, it must be held that the expression ‘cluster collector’ constitutes an abstract reference to a person who collects groups of some kind, thus evoking a basic concept similar to the meaning of the earlier sign THE COLLECTOR.

95      The Board of Appeal did not therefore make an error of assessment in finding that the signs at issue were conceptually similar to at least an average degree.

 The inherent distinctiveness of the earlier mark

96      In paragraphs 77 to 79 of the contested decision, the Board of Appeal again rejected the applicant’s argument based on the weak distinctive character of the element ‘collector’ and found that the earlier mark had a normal distinctive character, since, inter alia, the elements ‘the collector’ taken as a whole had no meaning with regard to the goods at issue.

97      On that point, in the light of the assessments set out in paragraphs 66 to 75 above, the applicant’s claim concerning the weak distinctive character of the earlier mark resulting from the allegedly widespread use of the element ‘collector’ in the territory of the European Union must be rejected.

98      Consequently, there is no need to call into question the Board of Appeal’s finding relating to the normal distinctive character of the earlier mark.

 The global assessment of the likelihood of confusion

99      According to settled case-law, the existence of a likelihood of confusion depends on numerous elements and must be appreciated globally, taking into account all relevant factors of the particular case (see, to that effect, judgment of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 41 and the case-law cited). 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 (judgment of 14 December 2006, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).

100    In the present case, in paragraphs 83 to 85 of the contested decision, the Board of Appeal found that the goods and services covered by the marks at issue were in part similar and in part identical, and were aimed at a public with a level of attention which could vary from average to high. In the light of the normal distinctive character of the earlier mark, the average degree of visual and phonetic similarity characterising those marks and the at least average degree of conceptual similarity, it found that the differences between the elements of the signs at issue which were devoid of distinctive character or weakly distinctive would be attenuated on the part of the relevant public, since that public would only rarely have the chance to make a direct comparison between the marks at issue and would retain only an imperfect recollection of them.

101    In the light of those assessments, the Board of Appeal concluded, in paragraphs 88 and 89 of the contested decision, that there was a likelihood that the English-speaking part of the relevant public would believe that the goods and services bearing the signs at issue come from the same undertaking or, as the case may be, from economically linked undertakings, since, inter alia, the goods and services at issue could share the same distribution channels.

102    The applicant disputes the existence of a likelihood of confusion by relying on the differences between certain goods and services at issue, the obvious differences between the signs at issue, which, in its view, are similar to a low degree, and the high level of attention of the relevant public. On the latter point, it submits that the market for games of chance and software is saturated and specific, since the public concerned is capable of detecting the differences between the marks and the other designations used for the goods and services.

103    Furthermore, according to the applicant, the Board of Appeal should have concluded in the present case that there was no likelihood of confusion in the light of the judgment of 23 July 2025, Löwen Entertainment v EUIPO – Wazdan Holding (Magic Crown) (T‑436/24, not published, EU:T:2025:746), which was delivered in circumstances similar to those of the present case.

104    EUIPO disputes the applicant’s arguments.

105    First, in so far as the applicant relies on the alleged differences between certain categories of goods and services at issue, it must be borne in mind, in the light of the assessments set out in paragraphs 39 to 52 above, that the Board of Appeal correctly found that they were in part similar and in part identical.

106    Second, it should be borne in mind that the applicant does not dispute the Board of Appeal’s assessment that the level of attention of the relevant public in the present case varies from average to high. In that regard, it nevertheless submits that the market for games of chance and software is specific, in that it is saturated and targets an attentive public, which is capable of detecting the differences between the marks and the other designations used for the goods or services.

107    The fact that the relevant public is more attentive does not mean that it will examine in the smallest detail the mark with which it will be confronted, or that it will compare it in detail with another mark, since members of the relevant public only rarely have the chance to make a direct comparison between the different marks and must therefore rely on their imperfect recollection of them (see, to that effect, judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 26).

108    In that context, although the applicant relies on ‘evident’ differences between the marks at issue, it must be observed that the Board of Appeal, in paragraphs 84 and 85 of the contested decision, duly noted the different length and pronunciation of the signs at issue in the context of the global assessment of the likelihood of confusion, while putting their impact into perspective in the light of the non-distinctive or weakly distinctive character of the elements concerned and the imperfect recollection of those marks on the part of the relevant public.

109    Furthermore, in so far as the applicant relies on the inferences to be drawn, in its view, from the judgment of 23 July 2025, Magic Crown (T‑436/24, not published, EU:T:2025:746), for the purpose of assessing whether there is a likelihood of confusion in the present case, it must be observed, as EUIPO rightly submits, that the circumstances of the present case differ significantly from those which gave rise to the judgment of 23 July 2025, Magic Crown (T‑436/24, not published, EU:T:2025:746), in so far as the Court’s reasoning in that case was determined decisively by the weak distinctive character of the element common to the marks at issue, those marks therefore exhibiting only a low degree of visual, phonetic and conceptual similarity.

110    It follows that the conclusions which the applicant seeks to draw from the judgment of 23 July 2025, Magic Crown (T‑436/24, not published, EU:T:2025:746), cannot be transposed to the global assessment of the likelihood of confusion in the present case.

111    In the light of the foregoing considerations, the Board of Appeal correctly found that there was a likelihood of confusion by concluding, in accordance with the principle of interdependence of the relevant factors referred to in paragraph 99 above, that the differences between the marks at issue, due to weak or non-distinctive elements, would be attenuated in the present case by the similarity, or even by the identity, of the goods and services at issue, and by the similarity of the signs at issue resulting from the presence of a distinctive common element, that is so despite the possibly high level of attention of the relevant public, since that public only rarely has the opportunity to compare those marks directly and that public may be targeted through the same distribution channels.

112    Accordingly, the plea in law alleging infringement of Article 8(1)(b) of Regulation 2017/1001 must be rejected.

 The plea in law alleging breach of the principles of equal treatment, sound administration and protection of legitimate expectations

113    The applicant claims that the contested decision fails to have regard to the principles of equal treatment and sound administration, in that it does not take account of the decisions previously adopted by EUIPO on similar applications for registration of a mark, and that those decisions gave rise to a legitimate expectation on its part as to the registration of the mark applied for.

114    EUIPO disputes the applicant’s arguments.

115    In that regard, it must be borne in mind that the decisions concerning the registration of a sign as an EU trade mark which EUIPO takes under Regulation 2017/1001 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of decisions of the Boards of Appeal 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 (judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65).

116    However, EUIPO is under a duty to exercise its powers in accordance with the general principles of EU law, including the principles of equal treatment and of sound administration. In the light of those principles, EUIPO must take into account the decisions already taken in respect of similar applications and consider with especial care whether it should decide in the same way or not. The way in which those principles are applied must be consistent with respect for the principle of legality (see, to that effect, judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 73 to 75).

117    Consequently, a person who files an application for registration of a sign as an EU trade mark cannot rely, to his or her advantage and in order to secure an identical decision, on a possibly unlawful act committed for the benefit of someone else. Moreover, for reasons of legal certainty and, indeed, of sound administration, the examination of any trade mark application must be stringent and full, in order to prevent trade marks from being improperly registered. That examination must be undertaken in each individual case. The registration of a sign as an EU trade mark depends on specific criteria, which are applicable in the factual circumstances of the particular case and the purpose of which is to ascertain whether the sign at issue is caught by a ground for refusal (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 76 and 77).

118    In the present case, it follows from the examination of the first plea that the Board of Appeal correctly found, on the basis of a stringent and full assessment, that there was a likelihood of confusion between the mark applied for and the earlier mark within the meaning of Article 8(1)(b) of Regulation 2017/1001. Consequently, the applicant cannot usefully rely, in order to invalidate that conclusion, on EUIPO’s previous decision-making practice.

119    In any event, as regards the applicant’s argument based on the alleged similarity between the present case and the case which gave rise to the judgment of 23 July 2025, Magic Crown (T‑436/24, not published, EU:T:2025:746), it is sufficient to recall, in accordance with the assessment set out in paragraph 109 above, that the outcome of the case in question was decisively determined by the weak distinctive character of the element common to the marks at issue, which had only a low degree of similarity, whereas the element common to the two marks at issue is distinctive, and they are visually and phonetically similar to an average degree and conceptually similar to at least an average degree.

120    As regards the previous treatment of applications for registration of marks allegedly similar to the mark applied for, it must be stated that the applicant’s written pleadings do not contain any arguments capable of substantiating the alleged similarity. In particular, as regards the list of earlier EU trade marks containing the word element ‘collector’ to which reference is made in that context, it should be noted that that list was provided by the applicant in order to establish the allegedly widespread use of that element and does not, in itself, allow any detailed conclusion to be drawn as to the existence of a likelihood of confusion in the present case, as EUIPO correctly submits.

121    It follows that the applicant’s arguments alleging that the Board of Appeal departed from EUIPO’s previous decision-making practice, in breach of the principles of equal treatment, sound administration and legitimate expectations, are in part unfounded and in part insufficiently substantiated, and must therefore be rejected.

122    Accordingly, the present plea in law must be rejected and, consequently, the action must be dismissed in its entirety.

 Costs

123    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.

124    In the present case, since the applicant has been unsuccessful, it is appropriate to order it to bear its own costs. Since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is held, EUIPO must, in the absence of a hearing, be ordered to bear its own costs.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Wazdan Innovations ltd. and the European Union Intellectual Property Office (EUIPO) each to bear their own costs.

Delivered in open court in Luxembourg on 10 June 2026.

*      Language of the case: English.