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Document 62024TO0374

Digriet tal-Qorti Ġenerali (L-Ewwel Awla) tal-20 ta’ Mejju 2025.
AirPlus International GmbH vs L-Uffiċċju tal-Proprjetà Intellettwali tal-Unjoni Ewropea.
Kawża T-374/24.

ECLI identifier: ECLI:EU:T:2025:544

ORDER OF THE GENERAL COURT (First Chamber)

20 May 2025 (*)

( Action for annulment – EU trade mark – Opposition proceedings – Application for EU figurative mark R+ CASHLAB – Earlier EU word marks AirPlus International, AirPlus Connect and AirPlus Travel Expense Card and earlier EU figurative mark AirPlus INTERNATIONAL – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 – Obligation to state reasons – Article 94(1) of Regulation 2017/1001 – Examination of the facts of EUIPO’s own motion – Article 95(1) of Regulation 2017/1001 – Well-known facts – Refusal of the request for oral proceedings before the Board of Appeal – Article 96(1) of Regulation 2017/1001 – Action manifestly lacking any foundation in law )

In Case T‑374/24,

AirPlus International GmbH, established in Neu-Isenburg (Germany), represented by R. Kunze, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by E. Markakis, acting as Agent,

defendant,

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

Irene Comeig Ramírez, residing in Valencia (Spain),

THE GENERAL COURT (First Chamber),

composed of R. Mastroianni, President, T. Tóth and S.L. Kalėda (Rapporteur), Judges,

Registrar: V. Di Bucci,

makes the following

Order

1        By its action under Article 263 TFEU, the applicant, AirPlus International GmbH, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 13 May 2024 (Case R 2171/2023-2) (‘the contested decision’).

 Background to the dispute

2        On 17 April 2019, the other party to the proceedings before the Board of Appeal, Ms Irene Comeig Ramírez, filed with EUIPO an application for registration of an EU trade mark in respect of the following figurative sign:

Image not found

3        The mark applied for covered services in Classes 36 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 36: ‘Finance services; Financial forecasting; Financial advice and consultancy services; Consultancy services relating to corporate finance; Financial advisory services for companies; Financial planning and investment advisory services; Financial analysis; Research services relating to finance; Financial appraisals and valuations; Financial analysis and research services; Research services relating to investment; Conducting financial feasibility studies; Preparation and analysis of financial reports; Provision of tax advice [not accounting]; Advisory services relating to investments and finance; Investment consultancy; Capital investment consultation; Investment risk assessment services; Financial information for investors; Investment research; Investment information; Equity capital investment; Investment business services; Arranging investments, in particular capital investments, financing services and insurance; Computerised information services relating to investments; Financial information services provided by access to a computer database; Financial appraisal services; Financial evaluation and analysis; Fiscal assessments; Providing information, consultancy and advice in the field of financial valuation; Business appraisals for financial valuation; Asset evaluation [financial]; Fiscal assessment and evaluation; Intellectual property valuation services; Evaluation of chattels; Valuation of capital stock; Real-estate valuations; Financing services for companies; Crowdfunding; Venture capital services; Fundraising; Financial sponsorship; Project finance; Private placement and venture capital investment services; Financial brokerage services; Providing financing to emerging and start-up companies; Venture capital funding services to emerging and start-up companies; Information services, advisory and consulting services relating thereto; All of the aforesaid services also provided via global computer communications networks and electronic media; none of the aforementioned services for providing services of a payment or credit card company, nor for providing payment and credit services, bonus-card services, nor for providing travel payment solutions or travel payment tools’;

–        Class 42: ‘Cloud computing; Consulting in the field of cloud computing networks and applications; Cloud hosting provider services; Providing virtual computer systems through cloud computing; Software development, programming and implementation; Hosting services and software as a service and rental of software; Development and testing of computing methods, algorithms and software; Design of computer machine and computer software for commercial analysis and reporting; Providing temporary use of on-line non-downloadable software development tools; Configuration of computer software; Computer software research; Maintenance of software; Software customisation services; Software design and development; Maintenance and updating of computer software; Advisory services relating to computer programming; Computer software technical support services; Development of computer software application solutions; Project studies relating to software; Creation of computer programmes for data processing; Research relating to the development of computer software; Programming of computer software for evaluation and calculation of data; Programming of software for market research purposes; Services for the design of electronic data processing software; Design and development of software in the field of mobile applications; Software as a service [SaaS]; Rental of software; Providing online, non-downloadable software; Providing temporary use of non-downloadable computer software; Providing temporary use of web-based software; Consulting services in the field of software as a service [SaaS]; Providing temporary use of online nondownloadable investment software; Providing temporary use of on-line nondownloadable software for the management of information; Providing temporary use of on-line non-downloadable software for importing and managing data; Application service provider [ASP], namely, hosting computer software applications of others; Providing temporary use of non-downloadable software for analyzing financial data and generating reports; Providing temporary use of non-downloadable software applications accessible via a web site; Quality control relating to computer software; Scientific research and analysis; Computer aided scientific testing; Estimations in the field of technology provided by engineers; Engineering project studies; Engineering feasibility studies; Provision of engineering reports; Engineering surveying; Preparation of technological reports; Providing of information, advice and consultancy relating to all the aforesaid services; All of the aforesaid services also provided via global computer communications networks and electronic media; none of the afore-mentioned services for providing services of a payment or credit card company, nor for providing payment and credit services, bonus-card services, nor for providing travel payment solutions or travel payment tools’.

4        On 19 September 2019, the applicant filed a notice of opposition to registration of the mark applied for in respect of the services referred to in paragraph 3 above.

5        The opposition was based on the following earlier rights:

–        the EU figurative mark reproduced below, registered on 24 August 2007 under number 2335057, designating goods and services in Classes 9, 35, 36 and 42:

Image not found

–        the EU word mark AirPlus International, registered on 26 September 2002 under number 2335693, designating goods and services in Classes 9, 35, 36 and 42;

–        the EU word mark AirPlus Connect, registered on 15 March 2018 under number 17475864, designating goods and services in Classes 9, 35, 36 and 38;

–        the EU word mark AirPlus Travel Expense Card, registered on 14 March 2002 under number 14532055, designating goods and services in Classes 9, 35 and 36.

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

7        On 29 August 2023, the Opposition Division rejected the opposition.

8        On 27 October 2023, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.

9        By the contested decision, the Board of Appeal dismissed the appeal on the ground that there was no likelihood of confusion, in the light in particular of the important visual dissimilarity between the signs at issue, the low impact of those signs’ conceptual similarity on the likelihood of confusion and the high degree of attention of part of the relevant public.

 Forms of order sought

10      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs incurred in the proceedings before the Court, before the Board of Appeal and before the Opposition Division.

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      Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly lacking any foundation in law, the General Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

13      In the present case, the Court considers that it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings, even though one of the parties – the applicant – has asked the Court to hold a hearing (see, to that effect, judgment of 6 June 2018, Apcoa Parking Holdings v EUIPO, C‑32/17 P, not published, EU:C:2018:396, paragraphs 22 to 24, and order of 3 May 2018, Siberian Vodka v EUIPO – Schwarze und Schlichte (DIAMOND ICE), T‑234/17, not published, EU:T:2018:259, paragraph 14).

14      In support of its action, the applicant relies, in essence, on three pleas in law, alleging, first, infringement of Article 8(1)(b) of Regulation 2017/1001, second, infringement of Article 94(1) and Article 95(1) of that regulation, of the right to be heard and of the right to a fair trial and, third, infringement of Article 96(1) of Regulation 2017/1001.

15      The Court considers it appropriate to examine the second plea in law first.

 The second plea in law, alleging infringement of Article 94(1) and Article 95(1) of Regulation 2017/1001

16      The applicant claims, in essence, that the Board of Appeal infringed Article 94(1) and Article 95(1) of Regulation 2017/1001 by taking the view that financial services are mostly provided after they have been visually presented to consumers, even though that point was not raised by the parties and the applicant did not have the opportunity to submit its comments in that regard. In addition, the Board of Appeal did not furnish any evidence in support of that finding and did not state the reasons for it to the requisite legal standard. Furthermore, according to the applicant, the contested decision is contradictory in so far as, on the one hand, the Board of Appeal states in paragraph 49 of that decision that the level of attention of the relevant public is ‘higher than average’ and, on the other hand, it bases its assessment in paragraph 142 of that decision on ‘highly attentive consumers’.

17      EUIPO contests the applicant’s arguments.

18      Under Article 95(1) of Regulation 2017/1001, in proceedings relating to relative grounds for refusal of registration, EUIPO is restricted in its examination to the facts, evidence and arguments provided by the parties and the relief sought, so that the Board of Appeal may base its decision only on the relative grounds for refusal relied on by the party concerned and on the related facts and evidence presented by the parties.

19      Nevertheless, the fact remains that the Board of Appeal is required to decide on all issues which, in the light of the facts, evidence and arguments provided by the parties and the relief sought, are necessary to ensure a correct application of Regulation 2017/1001 and in respect of which it has all the information required in order to be able to take a decision, even if no element of law related to those issues has been relied on by the parties before it (judgment of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 41; see also judgment of 19 October 2022, Greenwich Polo Club v EUIPO – Lifestyle Equities (GREENWICH POLO CLUB), T‑437/21, not published, EU:T:2022:643, paragraph 22 and the case-law cited).

20      Furthermore, the Board of Appeal is entitled, where appropriate, to supplement the factual evidence adduced by the parties for the purposes of its examination of whether there is a likelihood of confusion. Indeed, the restriction of the factual basis of the examination by the Board of Appeal, as referred to in paragraph 19 above and provided for in Article 27(2) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001 and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104 p. 1), does not preclude it from taking into consideration, in addition to the facts expressly put forward by the parties to the opposition proceedings, facts which are well known, that is, which are likely to be known by anyone or which may be learnt from generally accessible sources (see, by analogy, judgment of 22 June 2004, Ruiz-Picasso and Others v OHIM – DaimlerChrysler (PICARO), T‑185/02, EU:T:2004:189, paragraph 29).

21      In the context of opposition proceedings based on Article 8(1)(b) of Regulation 2017/1001, the assessment of the similarity of the goods and services in question and of the signs at issue is necessary to ensure the correct application of that regulation, with the result that the adjudicating bodies of EUIPO are required to make those assessments, if necessary of their own motion. As those assessments do not presuppose any matter of fact which is for the parties to establish and do not require the parties to provide facts, arguments or evidence tending to establish the existence of those similarities, EUIPO alone is able to detect and assess the existence thereof having regard to the earlier mark on which the opposition is based (see, to that effect, judgment of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 43).

22      In the present case, since the applicant argued, before the Board of Appeal, that consumers often communicate with providers of financial services by telephone, the Board of Appeal could, without committing an error of law, examine the perception of the signs at issue by consumers in the light of practices on the market for goods and services in the financial sector, taking into consideration well-known facts, even if such facts were not relied on before it.

23      In that regard, the fact relied on by the Board of Appeal in the contested decision that contracts in the financial sector are generally entered into on the basis of a written offer or an offer presented on the internet must be regarded as a well-known fact within the meaning of the case-law cited in paragraph 20 above (see, to that effect, judgments of 13 July 2012, Caixa Geral de Depósitos v OHIM – Caixa d’Estalvis i Pensions de Barcelona (‘la Caixa’), T‑255/09, not published, EU:T:2012:383, paragraph 79; of 12 June 2019, EOS Deutscher Inkasso-Dienst v EUIPO – IOS Finance EFC (IOS FINANCE), T‑583/17, not published, EU:T:2019:403, paragraphs 103 and 104; and of 12 July 2023, mBank v EUIPO – European Merchant Bank (EMBANK European Merchant Bank), T‑261/22, not published, EU:T:2023:396, paragraph 138). Accordingly, first, the bodies of EUIPO were not required to establish, in their decisions, the accuracy of such a fact and, second, the applicant was entitled to produce documents before the Court to contest its accuracy (see, to that effect, judgments of 10 June 2020, Louis Vuitton Malletier v EUIPO – Wisniewski (Representation of a chequerboard pattern), T‑105/19, not published, EU:T:2020:258, paragraph 30 and the case-law cited, and of 30 April 2025, AirPlus International v EUIPO – Repsol (R+), T‑241/24, not published, EU:T:2025:419, paragraph 21 and the case-law cited).

24      Against that background, the applicant cannot criticise the Board of Appeal for failing to provide evidence as to its finding, in paragraph 141 of the contested decision, that the choice of banking and financial services was generally made visually, that is to say, on the basis of a written offer or via the internet. In addition, it must be noted, as observed by EUIPO, that it is for the applicant to prove its claims that the services in question were, to a very large extent, marketed and provided orally.

25      In so far as the applicant’s arguments could be interpreted as alleging a failure to state reasons for the contested decision, it must be held that the Board of Appeal stated, to the requisite legal standard, the reasons for that decision, enabling the applicant to understand the reasons for the dismissal of its action and the Court to review the legality of that decision. Furthermore, since the Board of Appeal was not required to establish, in its decision, the accuracy of the well-known fact relied on, the applicant cannot validly claim that the grounds are inadequate in that regard.

26      As regards the alleged contradiction between the references made by the Board of Appeal to the ‘higher than average degree of attention’ and to ‘highly attentive consumers’ (paragraphs 49 and 142 of the contested decision), it must be stated that, contrary to what the applicant claims, there is no contradiction between those words, which refer, in essence, to a ‘high’ level of attention, which, moreover, is not disputed by the applicant.

27      Accordingly, the second plea in law must be rejected as being manifestly unfounded.

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

28      In support of its first plea, alleging infringement of Article 8(1)(b) of Regulation 2017/1001, the applicant contests the Board of Appeal’s finding that, in the context of the global assessment of the likelihood of confusion, the visual differences between the signs at issue meant that it could be concluded that there was no likelihood of confusion, despite the phonetic similarities. According to the applicant, confirmation of the existence of a phonetic similarity of the signs at issue should have been sufficient to reach the conclusion that there is a likelihood of confusion. In addition, the applicant points to the importance of the phonetic aspect of those signs for the services in question, stating that consumers regularly communicate with financial service providers over the phone, for example in connection with telephone banking services.

29      EUIPO contests those arguments.

30      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. Furthermore, under Article 8(2)(a)(ii) of Regulation 2017/1001, ‘earlier trade marks’ means trade marks registered in a Member State with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.

31      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 at issue and the 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).

32      In the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).

33      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).

34      In addition, it should be recalled that the global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).

35      Assessment of the similarity between two marks cannot be limited to taking just one component of a composite trade mark and comparing it with another mark. Rather, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).

36      As a preliminary point, it should be noted that the Board of Appeal found that the goods and services in question were aimed at the general public and at business customers with specific professional knowledge or expertise. Moreover, it noted that, on account of their specific nature, the level of attention of the relevant public was higher than average in respect of the business-related services in Class 35, the financial services in Class 36 and the payment-related goods in Class 9. In addition, that level of attention was also higher than average for the services in question in Class 42, which principally targeted business customers. Consequently, all the services in question in Classes 36 and 42 were aimed at customers with a higher than average level of attention, which, as is apparent from paragraph 26 above, denoted a high level of attention.

37      The applicant’s argument that the Board of Appeal failed to take into account its own definition of the relevant public when assessing the likelihood of confusion must therefore be rejected.

38      Moreover, the Board of Appeal noted that all of the services covered by the mark applied for were identical or similar to the services covered by the earlier marks. The applicant does not dispute that finding of the Board of Appeal.

39      Next, in the first place, as regards the distinctive character of the signs at issue, the Board of Appeal found that the earlier marks had a normal degree of distinctiveness. That finding is not disputed by the applicant.

40      As regards the applicant’s argument that the Board of Appeal, when comparing the signs at issue, incorrectly took account of the distinctive character of the mark applied for, it must be noted that that assessment by the Board of Appeal forms part of the latter’s examination of the possible distinctive or dominant character of one or more of the elements making up the mark applied for, for the purpose of determining the overall impression produced by that mark, within the meaning of the case-law referred to in paragraph 34 above. According to the case-law, the examination of the elements making up the signs at issue is a preliminary step which is necessary for and inextricable from the assessment of the similarity of those signs. The Board of Appeal was therefore required, in order to ensure the correct application of Article 8(1)(b) of Regulation 2017/1001, to examine the elements of the mark applied for, even if those elements had not been challenged before the Board of Appeal (see, to that effect, judgment of 13 September 2023, Korres v EUIPO – Naos (EST. KORRES 1996 HYDRA-BIOME), T‑328/22, not published, EU:T:2023:533, paragraph 28).

41      In addition, the applicant cannot effectively challenge the Board of Appeal’s finding, first, that the ‘R+’ element of the mark applied for had a minimum degree of distinctiveness and, second, that the mark applied for did not contain any dominant element.

42      Indeed, it follows from the case-law that the figurative elements of a figurative mark are not necessarily the dominant components of that mark (judgment of 20 May 2014, Argo Group International Holdings v OHIM – Arisa Assurances (ARIS), T‑247/12, EU:T:2014:258, paragraph 36), since the assessment of dominance depends, in particular, on an assessment of the intrinsic qualities of each element making up the relevant sign compared with those of the other elements making up that sign (judgment of 6 April 2022, Moio v EUIPO – Paul Hartmann (moio.care), T‑276/21, not published, EU:T:2022:221, paragraph 66).

43      In the present case, first, as the Board of Appeal correctly stated, the letter ‘r’ of the mark applied for is written in a standard yellow font and is only slightly stylised, whereas the other figurative element of the mark applied for is a simple representation of the sign ‘+’ in yellow, which is also not striking. Second, the word element ‘cashlab’ of the mark applied for, which will be perceived as a combination of the word elements ‘cash’ and ‘lab’, is descriptive of the place where the services in question may be provided and devoid of distinctive character. Although that word element plays a minor role in the assessment of the likelihood of confusion, it cannot be completely ignored, since it may have some influence on the pronunciation of the mark applied for. The Board of Appeal was therefore right to conclude that none of the elements of the mark applied for was more dominant than the others.

44      In the second place, as regards the comparison of the signs at issue, it should be noted that the Board of Appeal found that those signs were visually different and that, by contrast, for part of the relevant public, the mark applied for had at least an average degree of phonetic similarity with the word element ‘airplus’ of the earlier marks. In addition, the Board of Appeal noted that the conceptual comparison had no significant influence in the present case. Those findings are not called into question by the applicant, which merely disputes the conclusions to be drawn from them in respect of the global assessment of the likelihood of confusion.

45      In that regard, the applicant disputes the global assessment of the likelihood of confusion, in the context of which the Board of Appeal found that, having regard in particular to the nature of the goods and services in question and the level of attention of the relevant public, the visual differences between the signs at issue outweighed their phonetic similarity.

46      As is apparent from settled case-law, in the context of the global assessment of the likelihood of confusion, the visual, phonetic or conceptual aspects of the signs at issue do not always have the same weight and it is appropriate to examine the objective conditions under which the marks may be present on the market (judgment of 6 October 2004, New Look v OHIM – Naulover (NLSPORT, NLJEANS, NLACTIVE and NLCollection), T‑117/03 to T‑119/03 and T‑171/03, EU:T:2004:293, paragraph 49; see also judgment of 13 July 2012, ‘la Caixa’, T‑255/09, not published, EU:T:2012:383, paragraph 78 and the case-law cited).

47      In the present case, as regards, first, the level of attention of the relevant public, it should be borne in mind that, as is apparent from paragraph 26 above, that level is high. Indeed, as regards, in particular, the financial services in Class 36, it is apparent from the case-law that the level of attention of the specialised public and of the general public for financial services is high since those services are liable to have a direct impact on the economic and financial assets of consumers, they generally involve substantial sums of money and they may have significant financial consequences (see judgment of 2 March 2022, Banco de Investimento Global v EUIPO – Banco BIC Português (EUROBIC), T‑125/21, not published, EU:T:2022:102, paragraph 66 and the case-law cited).

48      Second, the applicant has not called into question the Board of Appeal’s finding that the purchase of the goods and services in question was generally made on the basis of a written offer or via the internet, with the result that the relevant public would be confronted visually with the signs at issue. In that regard, the applicant merely submits that consumers often communicate with providers of financial services by telephone, for example in connection with telephone banking services, without, however, providing any evidence that supports those claims or that is capable of calling into question the Board of Appeal’s finding, arising from a well-known fact, that the services in question were generally chosen on the basis of a written offer or an offer presented on the internet.

49      The Court previously held that, for financial services in Class 36, the visual aspect of the signs predominated, since the relevant public perceived the signs on business signs, written documents and prospectuses, when choosing a financial institution for its services and for the accompanying goods. In such a context, the visual aspect, and thus also the perception of graphic elements, in addition to word elements, was more important than the phonetic aspect (see, to that effect, judgments of 13 July 2012, ‘la Caixa’, T‑255/09, not published, EU:T:2012:383, paragraph 79; of 12 June 2019, IOS FINANCE, T‑583/17, not published, EU:T:2019:403, paragraphs 103 and 104; of 12 July 2023, EMBANK European Merchant Bank, T‑261/22, not published, EU:T:2023:396, paragraph 138 and the case-law cited; and of 30 April 2025, R+, T‑241/24, not published, EU:T:2025:419, paragraph 41 and the case-law cited).

50      In the light of the foregoing, it must be held that the Board of Appeal was right in finding that there was no likelihood of confusion in the present case and, therefore, the first plea in law must be rejected as manifestly unfounded.

 The third plea in law, alleging infringement of Article 96(1) of Regulation 2017/1001

51      The applicant claims that the Board of Appeal was wrong to refuse its request for an oral hearing, which would have allowed the applicant to address the facts and arguments in the current proceedings in more detail and to counter-argue the assertions made for the first time in the contested decision.

52      EUIPO contests the applicant’s arguments.

53      It is apparent both from the wording of Article 96(1) of Regulation 2017/1001 and from the case-law that the Board of Appeal has discretion as to whether, where a party requests that oral proceedings be organised, they are really necessary (order of 14 March 2011, Ravensburger v OHIM, C‑370/10 P, not published, EU:C:2011:149, paragraph 77, and judgment of 16 July 2014, Langguth Erben v OHIM (Shape of an alcoholic beverage bottle), T‑66/13, not published, EU:T:2014:681, paragraph 88).

54      In the present case, it must be stated that, although the applicant complains that the Board of Appeal did not organise oral proceedings, it does not indicate any circumstance which prevented it from making an effective statement of its position in the written procedure before EUIPO and does not demonstrate how oral proceedings were necessary in the present case.

55      Accordingly, the third plea in law must be rejected as manifestly unfounded.

56      Since none of the pleas put forward by the applicant in support of its claims is well founded, the action must be dismissed in its entirety as manifestly lacking any foundation in law.

 Costs

57      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.

58      Even though the applicant has been unsuccessful, EUIPO contended that it should be ordered to pay the costs only in the event that a hearing was convened. Since no hearing was held, each party must be ordered to bear its own costs.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby orders:

1.      The action is dismissed.

2.      AirPlus International GmbH and the European Union Intellectual Property Office (EUIPO) shall each bear their own costs.

Luxembourg, 20 May 2025.

V. Di Bucci

 

R. Mastroianni

Registrar

 

President


*      Language of the case: English.

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