1

By its action under Article 263 TFEU, the applicant, Eti Gıda Sanayi ve Ticaret AŞ, seeks the annulment of the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 15 December 2023 (Case R 912/2023-3) (‘the contested decision’).

2

On 13 July 2007, the applicant filed an application for registration of a Community design with EUIPO, pursuant to Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).

3

The Community design in respect of which registration was sought and which is contested in the present case is represented in the following view:

4

The goods to which the contested design is intended to be applied are in Class 09.03 of the Locarno Agreement Establishing an International Classification for Industrial Designs of 8 October 1968, as amended, and correspond to the following indication: ‘Packaging’.

5

On 21 February 2020, the intervener, Star Foods E.M. SRL, filed an application with EUIPO for a declaration of invalidity of the contested design in respect of the goods referred to in paragraph 4 above.

6

The ground relied on in support of the application for a declaration of invalidity was that set out in Article 25(1)(e) of Regulation No 6/2002, in the version prior to the entry into force of Regulation (EU) 2024/2822 of the European Parliament and of the Council of 23 October 2024 (OJ L, 2024/2822), read in conjunction with Article 36(2)(b) and (c) of lege nr. 84 privind mărcile și indicațiile geografice (Law No 84 on trade marks and geographical indications) of 15 April 1998 (Monitorul Oficial al României, No 337 of 8 May 2014; ‘the Romanian law on trade marks’). The intervener had based that application on the earlier Romanian word mark KRAX and on several earlier rights, including the Romanian figurative mark KRAX, which was registered under No 071100 for goods in Class 30, and, more specifically, for ‘snack products, especially those made from cereals by expanding and extruding processes, with different flavours’. The intervener contended that, on account of the similarities between the earlier sign and the goods covered by it, there is a likelihood of confusion within the meaning of the Romanian law on trade marks, thus enabling it to prohibit the use of its distinctive sign in the contested design. Moreover, since the earlier national mark has a reputation in Romania, its reproduction in a similar manner in that design would enable the holder of that design to benefit from its reputation and from the marketing effort and, consequently, its use would be detrimental to its distinctive character within the meaning of the provision in question.

7

At the applicant’s request, by decision of 31 May 2021, the Invalidity Division stayed the proceedings pending a final decision from the Tribunalul Bucureşti (Regional Court, Bucharest, Romania) before which the earlier Romanian figurative mark No 071100 (‘the earlier mark’) was also contested.

8

By decision of 7 November 2022, the Invalidity Division resumed the proceedings following the final dismissal of the appeal brought before the national court and, consequently, on 1 March 2023, it upheld the application for a declaration of invalidity, by beginning its examination on the basis of the earlier mark, filed on 3 August 2003, registered on 2 May 2006 in the name of the intervener and represented in the following view:

9

More specifically, the Invalidity Division first of all found that the earlier mark had an average degree of inherent distinctive character and that its validity had been confirmed by the Romanian courts. Next, it took the view, in essence, that the goods covered by that mark and those to which the contested design is intended to be applied were identical, that that mark and that design were visually and phonetically similar to an average degree and that, therefore, the similarities between the two signs were sufficient to conclude that there was a likelihood of confusion. In those circumstances, since the intervener had the right to prohibit, under Article 36(2)(b) of the Romanian law on trade marks, the use of the sign used in that design, it declared the design invalid, in accordance with Article 25(1)(e) of Regulation No 6/2002 in its earlier version. Given that the application had been upheld on the basis of the inherent distinctive character of the mark at issue, it concluded that there was no need to adjudicate on the alleged enhanced distinctive character claimed by the intervener, or on its claim seeking to prohibit the use of the sign in the design concerned on account of the alleged reputation of such a mark.

10

On 28 April 2023, the applicant filed a notice of appeal with EUIPO against the decision of the Invalidity Division.

11

By the contested decision, the Board of Appeal dismissed the appeal. In essence, it concluded that the Invalidity Division was justified in declaring the contested design invalid pursuant to Article 25(1)(e) of Regulation No 6/2002 in its earlier version, read in conjunction with Article 36(2)(b) of the Romanian law on trade marks, since there was a likelihood of confusion. In that regard, it found that the goods covered by that mark and those to which that design is intended to be applied were similar, that those signs were visually and phonetically similar to an average degree, that the main word elements of those signs had no meaning for the Romanian public and that the conceptual differences based on the other elements making up that design had no impact on the assessment of the likelihood of confusion on account of their descriptive or weakly distinctive character and of their size and secondary position, with the result that a conceptual comparison was impossible. Furthermore, it found that the limitation in consequence of acquiescence according to Romanian law, alleged by the applicant, could not succeed in the absence of proof of acquiescence claimed for an uninterrupted period of five years.

12

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

13

EUIPO contends that the Court should:

14

The intervener contends that the Court should:

15

In support of the action, the applicant relies, in essence, on three pleas in law, alleging, first, infringement of Article 25(1)(e) of Regulation No 6/2002 in its earlier version, second, infringement of Articles 94 and 95 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) and of Article 40(1) of the Romanian law on trade marks, as amended (Monitorul Oficial al României, No 856 of 18 September 2020; ‘the new Romanian law’) and, third, breach of its rights of the defence.

16

The Court considers that it is appropriate to begin by examining the third plea, to proceed by examining the second plea and to conclude by examining the first plea.

17

The applicant complains, in essence, that the Board of Appeal breached its rights of the defence and, more specifically, its right to be heard, by repeatedly failing to take account of its observations relating to the fact that the intervener is not the proprietor of the earlier mark. According to the applicant, the intervener has not adduced proof of the existence of that mark, of the name of the proprietor of that mark or of the renewal of the mark at issue. It concludes that the Board of Appeal should have dismissed the appeal against the Invalidity Division’s decision as inadmissible for failure to properly identify the actual holder of the earlier right.

18

EUIPO and the intervener dispute the applicant’s arguments.

19

As a preliminary point, it must be noted that the applicant merely observes typographical differences in the name of the legal entity of the earlier mark’s proprietor and in the addresses mentioned in the various items of evidence submitted during the administrative phase of the proceedings. According to the applicant, failure to take into account its arguments, relating to the alleged lack of evidence that the intervener is the actual proprietor of that mark, constitutes, in essence, a breach of its rights of the defence.

20

According to Article 62 of Regulation No 6/2002 in its earlier version, decisions of EUIPO may be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments. The general principle of protection of the right to defend oneself is enshrined in the law of EU designs by that provision. According to that general principle of EU law, a person whose interests are significantly affected by a decision addressed to him or her and taken by a public authority must be given the opportunity to make his or her point of view known. The right to be heard thus extends to all the matters of fact or of law which form the basis of the decision, but not to the final position which the authority intends to adopt (judgment of 9 February 2017, Mast-Jägermeister v EUIPO (Beakers), T‑16/16, EU:T:2017:68, paragraph 57), or to each well-known fact on which it relies in order to arrive at that position (see judgment of 29 April 2020, Bergslagernas Järnvaru v EUIPO – Scheppach Fabrikation von Holzbearbeitungsmaschinen (Wood-splitting tool), T‑73/19, not published, EU:T:2020:157, paragraph 15 and the case-law cited).

21

In addition, according to settled case-law, the rights of the defence are infringed by reason of a procedural irregularity only in so far as the irregularity actually has an effect on the ability of the party concerned to defend itself. Consequently, non-compliance with rules in force whose purpose is to protect the rights of the defence can vitiate the administrative procedure only if it is shown that the procedure could have had a different outcome if the rules had been observed (see judgment of 9 September 2015, Dairek Attoumi v OHIM – Diesel (DIESEL), T‑278/14, not published, EU:T:2015:606, paragraph 34 and the case-law cited).

22

In the present case, first, it must be noted that, in the statement setting out the grounds of appeal of 3 July 2023, the applicant had already complained that the Invalidity Division had, in essence, incorrectly assessed the evidence relating to proprietor of the earlier mark, the translations of which are, moreover, partially incorrect.

23

Second, it is apparent from the extracts of the registration certificate issued by the Oficiul de Stat pentru Inventii si Mărci (State Office for Inventions and Trade Marks, Romania) and from their translation, which were submitted at the same time as the application for a declaration of invalidity, that the earlier mark was initially registered by ‘SC STAR FOODS EM SRL’, located at 2 Str. Taberei, Jud. Ilfov, Popeşti Leordeni, 077160, Romania. That certificate shows, in the Romanian version as well as in its translation, that the current proprietor is ‘SC STAR FOODS E.M. SRL’ located at 391 Calea Văcăreşti, et. 4, secţiunea 2, sector 4, Bucharest, Romania. The difference in addresses and the new punctuation in the title of the legal entity which owns the earlier mark are not, however, sufficient to support the conclusion that there is serious doubt as to the actual ownership of the earlier mark by the intervener. In addition, by its decision of 9 July 2020 in Case No 19812/3/2018, delivered in the context of an application for a declaration of invalidity brought before the national courts, the Tribunalul Bucureşti (Regional Court, Bucharest) confirmed that the intervener was the proprietor of the earlier mark, which remained validly registered until 3 August 2025.

24

Furthermore, it is apparent to the requisite legal standard from parts of the intervener’s reply, following the measures of organisation of procedure adopted by the Court, that, first, the differences in punctuation result from the usage of business names in the various languages, in particular, in Romanian or English. In that regard, it is apparent for the intervener’s reply that the element in dispute ‘EM’ or ‘E.M.’ corresponds to the initials of Mr Emmanuel Mitzalis, former proprietor of the undertaking, and that in all the official documents in Romanian, that element contains the same punctuation. Second, it is also apparent from the intervener’s replies that the various addresses appearing on the documents from the State Office for Inventions and Trade Marks or in the various documents in the file correspond to the same legal entity, which has several business premises and whose primary headquarters were transferred from 2 Str. Taberei, Jud. Ilfov, Popeşti Leordeni, 077160 to 391 Calea Văcăreşti, et. 4, secţiunea 2, sector 4, Bucharest, the initial headquarters, which now serve as offices and secondary headquarters of the undertaking. Third, it is common ground, as is also apparent from the intervener’s reply, that the undertaking which is the proprietor of the earlier mark has always been registered and has a unique registration code. Furthermore, that is borne out by the mention of that code in the decision of the Tribunalul Bucureşti (Regional Court, Bucharest) of 9 July 2020 delivered in Case No 19812/3/2018 which confirms the validity of the earlier mark.

25

Third, it is apparent from paragraphs 17, 22 and 23 of the contested decision that the Invalidity Division rejected the applicant’s arguments relating to proof of ownership of the earlier mark, and that the Board of Appeal accepted additional proof, by virtue of its discretion provided for in Article 63(2) of Regulation No 6/2002, in order to confirm that the trade mark application had been filed and registered in the name of ‘SC STAR FOODS E.M. SRL’ under the same address as that listed in the application for a declaration of invalidity. That address is also indicated under the initial address of the proprietor of the mark in the current extract from the register, as submitted by the intervener in the administrative proceedings.

26

It follows that the Board of Appeal did not breach the applicant’s rights of the defence. Moreover, none of the evidence in the file gives rise to serious doubt as to the ownership of the earlier mark, with the result that the contested decision is not vitiated by any procedural illegality that may have an effect on the outcome of the present action.

27

It follows that the third plea must be rejected as unfounded.

28

The applicant complains that the Board of Appeal infringed Articles 94 and 95 of Regulation 2017/1001 and Article 40(1) of the new Romanian law. First, according to the applicant, the Board of Appeal erred in law by not ordering the intervener to submit proof of use of the earlier mark which did not fall within the five-year grace period. Second, it claims, in essence, that the Board of Appeal should have examined the appeal against the Invalidity Division’s decision in the light of that law and, therefore, pursuant to that latter provision, should have requested proof of genuine use of that mark in invalidity proceedings based on Article 39 of that law, the wording of which is identical to that of Article 36 of the Romanian law on trade marks in force at the time when the application for a declaration of invalidity was lodged.

29

EUIPO, supported by the intervener, disputes the applicant’s arguments.

30

In the present case, it must be observed that the applicant did not submit a request for proof of genuine use of the earlier mark before the Invalidity Division and the Board of Appeal.

31

In that regard, it must be borne in mind that, pursuant Article 61 of Regulation No 6/2002, the Court’s review of the legality of a decision of the Board of Appeal must relate to the issues of law raised before the Board of Appeal. Therefore, it is not the Court’s function to examine new pleas introduced before it or to review the facts in the light of evidence adduced for the first time before it. To allow the examination of those new pleas would be contrary to Article 188 of the Rules of Procedure of the General Court, according to which the pleadings lodged by the parties in proceedings before the General Court may not change the subject matter of the proceedings before the Board of Appeal (see, to that effect, judgment of 3 July 2024, Canalones Castilla v EUIPO – Canalones Novokanal (Water-collection guttering or waterspout), T‑329/22, not published, EU:T:2024:438, paragraph 69 and the case-law cited).

32

Consequently, the second plea must be rejected as unfounded.

33

The applicant submits that the Board of Appeal infringed Article 25(1)(e) of Regulation No 6/2002 in its earlier version by incorrectly finding that there was a likelihood of confusion.

34

The applicant complains, in essence, that the Board of Appeal, first, made an error of assessment as regards the determination of the goods at issue, second, examined the appeal against the Invalidity Division’s decision on the basis of the perception of the average consumer and not that of the informed user, third, erred in finding that the signs at issue were visually and phonetically similar to an average degree and, fourth, erred in finding that the earlier mark had an average degree of distinctive character, on account, in particular, of the fact that the word element ‘krax’ of that mark had a meaning for the relevant public, and that that mark had coexisted for more than 10 years with the EU trade mark CRAXX.

35

EUIPO and the intervener dispute the applicant’s arguments.

36

Article 25(1)(e) of Regulation No 6/2002 in its earlier version provides that a design may be declared invalid if a distinctive sign is used in a subsequent design, and EU law or the law of the Member State governing that sign confers on the right holder of the sign the right to prohibit such use.

37

According to the case-law, an application, based on the ground for invalidity specified in Article 25(1)(e) of Regulation No 6/2002 in its earlier version, for a declaration that a Community design is invalid can succeed only if it is found that the relevant public will form the impression that use is made, in that Community design, of the distinctive sign relied on in support of the application for a declaration of invalidity. The examination of that ground for invalidity must be based on the perception by the relevant public of the distinctive sign relied on in support of that ground, as well as on the overall impression which the sign leaves in the mind of the public (see judgment of 24 September 2019, Piaggio & C. v EUIPO – Zhejiang Zhongneng Industry Group (Mopeds), T‑219/18, EU:T:2019:681, paragraph 67 and the case-law cited).

38

The ground for invalidity specified in Article 25(1)(e) of Regulation No 6/2002 in its earlier version does not necessarily presuppose a full and detailed reproduction of an earlier distinctive sign in a subsequent Community design. Even though the Community design may lack certain features of the sign in question or may have different, additional features, this may constitute ‘use’ of that sign, particularly where the omitted or added features are of secondary importance (see judgment of 7 February 2018, Şölen Çikolata Gıda Sanayi ve Ticaret v EUIPO – Zaharieva (Packaging for ice-cream cornets), T‑794/16, not published, EU:T:2018:70, paragraph 22 and the case-law cited).

39

This is particularly the case, as is apparent from well-established case-law, where the public retains only an imperfect picture of marks registered in the Member States or EU trade marks. That applies to every type of distinctive sign. As a consequence, if a distinctive sign as used in a subsequent Community design lacks certain secondary features or has additional features, the relevant public will not necessarily notice those changes vis-à-vis the earlier distinctive sign. On the contrary, it may believe that the sign it remembers is being used in the subsequent Community design (see judgment of 7 February 2018, Packaging for ice-cream cornets, T‑794/16, not published, EU:T:2018:70, paragraph 23 and the case-law cited).

40

It follows that Article 25(1)(e) of Regulation No 6/2002 in its earlier version is applicable where use is made not only of a sign that is identical to that relied on in support of an application for a declaration of invalidity but also of a sign that is similar (see judgment of 7 February 2018, Packaging for ice-cream cornets, T‑794/16, not published, EU:T:2018:70, paragraph 24 and the case-law cited).

41

In accordance with Article 36(2)(b) of the Romanian law on trade marks, the proprietor of a trade mark may, in essence, request the competent judicial body to prevent third parties not having his or her consent from using in the course of trade any sign in respect of which, because of its identity with, or similarity to, the trade mark or the identity or similarity of the goods or services to which the sign is affixed, there exists a likelihood of confusion on the part of the public, including the likelihood of association between the sign and the trade mark.

42

As the Board of Appeal was fully entitled to point out in paragraph 28 of the contested decision, Article 36(2)(b) of the Romanian law on trade marks constitutes the transposition into Romanian law of Article 10(2)(b) of Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks (OJ 2015 L 336, p. 1), the wording of which is itself identical to Article 5(1)(b) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25). Therefore, the concept of ‘likelihood of confusion’ within the meaning of Article 36(2)(b) of that law must be interpreted in the light of the case-law relating to Article 5(1)(b) of Directive 2008/95 and to Article 10(2)(b) of Directive 2015/2436 (see, to that effect, judgment of 7 February 2018, Packaging for ice-cream cornets, T‑794/16, not published, EU:T:2018:70, paragraphs 25 and 26).

43

According to the case-law of the Court of Justice, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically linked undertakings, constitutes a ‘likelihood of confusion’ within the meaning of Article 10(2)(b) of Directive 2015/2436. The existence of a likelihood of confusion on the part of the public must be assessed globally, taking into account all factors relevant to the circumstances of the case (see, to that effect, judgments of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraphs 22 and 23, and of 6 October 2005, Medion, C‑120/04, EU:C:2005:594, paragraphs 23 to 29).

44

In the light of those considerations, it is necessary to examine whether the Board of Appeal was fully entitled to confirm the decision of the Invalidity Division upholding the application for a declaration of invalidity of the contested design on the basis of Article 25(1)(e) of Regulation No 6/2002 in its earlier version, after taking the view, pursuant to Article 36(2)(b) of the Romanian law on trade marks, that there was a likelihood of confusion on the part of the relevant public.

45

As a preliminary point, in accordance with the case-law cited in paragraphs 42 and 43 above, the present proceedings concern the scope of protection of a mark and, more specifically, the question whether the proprietor of that earlier mark may prohibit the use of its distinctive sign in the contested design. Therefore, contrary to the applicant’s arguments, there is no need to examine the present plea by taking into account the impression conveyed to the informed user or the individual and novel character of the contested design, within the meaning of Articles 4 to 6 of Regulation No 6/2002.

46

The applicant disputes, in essence, the Board of Appeal’s findings that the goods at issue are similar. More specifically, it submits that there was no indication that the contested design would be used for snack sticks.

47

EUIPO and the intervener dispute the applicant’s arguments.

48

In order to ascertain the product in which the contested design is intended to be incorporated or to which it is intended to be applied, the relevant indication in the application for registration of that design should be taken into account, but also, where necessary, the design itself, in so far as it makes clear the nature of the product, its intended purpose or its function (judgment of 18 March 2010, Grupo Promer Mon Graphic v OHIM – PepsiCo (Representation of a circular promotional item), T‑9/07, EU:T:2010:96, paragraph 56).

49

In addition, in assessing the similarity of the goods at issue, all the relevant factors relating to those goods should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 23).

50

As regards, in particular, the complementary nature of the goods and services, which may alone justify the conclusion that the goods and services are similar, it should be noted that goods or services are complementary if there is a close connection between them, in the sense that one is indispensable or important for the use of the other in such a way that consumers may think that the responsibility for the production of those goods or for the provision of those services lies with the same undertaking. Thus, when determining whether goods or services are complementary, the perception of that public of the importance of a product or service for the use of another product or service should, ultimately, be taken into account (see judgment of 7 February 2018, Packaging for ice-cream cornets, T‑794/16, not published, EU:T:2018:70, paragraph 37 and the case-law cited).

51

In that respect, the assessment as to whether goods and services are complementary, in the context of a likelihood of confusion, does not rely on the existence of a connection between the goods and services at issue in the mind of the relevant public from the point of view of their nature, their method of use and their distribution channels. A criterion based on a connection between the method of use of those goods or services does not make it possible to carry out a full assessment as to whether those goods and services are indispensable or important for each other, which is required when analysing whether the goods and services are complementary. The fact that the method of use of a product or service is unrelated to the method of use of another product or service does not imply, in all cases, that the use of one is not important or indispensable for the use of the other (see judgment of 7 February 2018, Packaging for ice-cream cornets, T‑794/16, not published, EU:T:2018:70, paragraph 38 and the case-law cited).

52

In the present case, the Board of Appeal found, in paragraph 36 of the contested decision, that the representation of the contested design clearly shows the front side of food packaging, intended for the packaging of snacks or related goods. Since the use of the packaging corresponding to the contested design is crucial for the use of the goods covered by the earlier mark, namely preparations made from cereals in Class 30, that is sufficient to conclude that there is a close connection, a strong correlation and complementarity between the goods associated with the contested design and those covered by the earlier mark.

53

It follows that the use of the packaging represented by the contested design is, at the very least, important for the use of the goods covered by the earlier mark, with the result that, for the purposes of the case-law cited in paragraph 50 above, there is a close connection between them which is indicative of their complementarity and, therefore, their similarity.

54

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).

55

In the first place, in accordance with the case-law which states that where the earlier mark is a national mark, the relevant territory is that in which that mark is protected (see, to that effect, judgments of 3 September 2010, Companhia Muller de Bebidas v OHIM – Missiato Industria e Comercio (61 A NOSSA ALEGRIA), T‑472/08, EU:T:2010:347, paragraph 34, and of 2 March 2022, Laboratorios Ern v EUIPO – Beta Sports (META), T‑192/21, not published, EU:T:2022:105, paragraph 28), the Board of Appeal found, in paragraph 37 of the contested decision, that the relevant territory was Romania, since that mark is registered and protected in that Member State.

56

In the second place, in so far as the goods covered by the earlier mark and those concerned by the contested design relate, inter alia, to snack sticks intended for the general public (see paragraph 52 above), the Board of Appeal found that the relevant public consisted of consumers whose level of attention was average when purchasing that type of goods.

57

Those findings are free from error and must be upheld.

58

According to the case-law, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects, namely the visual, phonetic and conceptual aspects (see, to that effect, judgments of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 30, and of 10 December 2008, MIP Metro v OHIM – Metronia (METRONIA), T‑290/07, not published, EU:T:2008:562, paragraph 41).

59

The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs in question, must be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the signs by the average consumer of the goods in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark or another distinctive sign as a whole and does not proceed to analyse its various details (judgments of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 23, and of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 25).

60

Assessment of the similarity between two signs means more than taking just one component of a composite sign and comparing it with another sign. On the contrary, the comparison must be made by examining each of the signs in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite sign may not, in certain circumstances, be dominated by one or more of its components (see, to that effect, judgments of 6 October 2005, Medion, C‑120/04, EU:C:2005:594, paragraph 29, and of 22 October 2015, BGW,C‑20/14, EU:C:2015:714, paragraph 36). 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).

61

In the present case, before assessing the similarity of the signs at issue, it is necessary to examine their distinctive and dominant elements.

62

As the Board of Appeal observed in paragraph 40 of the contested decision, the earlier mark consists of the term ‘krax’, written in stylised upper-case letters, arranged in descending order from the upper-case letter ‘K’ to the upper-case letter ‘X’, against a dark, irregularly shaped background.

63

As regards the contested design, the Board of Appeal describes that design, in paragraph 41 of the contested decision, as a dark blue rectangular package displaying snack sticks and a piece of cheese within an oval frame. Positioned around and between those figurative depictions are various word elements, namely ‘eti’ and ‘crax’ at the top, ‘peynirli’ and ‘çubuk kraker’ at the bottom and ‘orijinal kitir lezzet’ in the middle right-hand side. The word element ‘crax’ is depicted in white upper-case letters written in an ascending order with a blue and yellow border, whereas the word element ‘eti’ is written in red with a white and black border and includes an unspecified white figurative element near its top left corner. The word elements ‘orijinal kitir lezzet’ and ‘peynirli’ are depicted in whole or in part, in upper- and title-case letters, in white with a black border, whereas the word element ‘çubuk kraker’ is depicted in thin yellow upper-case letters.

64

The applicant complains, in essence, that the Board of Appeal found that the word element ‘crax’ of the contested design was capable, on its own, of dominating the image of that design. According to the applicant, all the other components of that design are not negligible in the overall impression conveyed by it, since the similarity of the signs depends on the distinctive character of their components and any other relevant factors. Moreover, it claims that the word element ‘eti’ is the most dominant element in the overall impression conveyed by the design at issue, with the result that that word element will attract the relevant public’s attention the most. It submits, therefore, that the word element ‘crax’ is secondary and devoid of distinctive character in relation to the goods at issue.

65

Furthermore, the applicant disputes the Board of Appeal’s findings that the word element ‘crax’ has no meaning for the relevant public and is therefore distinctive. According to the applicant, that public will perceive that word element, first, as referring to the goods in Class 30 and marketed in Romania under the name ‘craxuri’ and, second, as being descriptive, in that it refers to the sound which is produced when crispy foodstuffs are consumed, such as snack sticks.

66

EUIPO and the intervener dispute the applicant’s arguments.

67

According to the case-law, in the assessment of the dominant character of one or more given components of a complex sign, account must be taken, in particular, of the intrinsic qualities of each of those components by comparing them with those of other components. In addition and accessorily, account may be taken of the relative position of the various components within the arrangement of the complex sign (see, to that effect, judgment of 23 October 2002, MATRAZEN, T‑6/01, EU:T:2002:261, paragraph 35).

68

In addition, in order to determine the distinctiveness of an element making up a sign, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the sign 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 sign has been registered (see judgment of 8 July 2015, Deutsche Rockwool Mineralwoll v OHIM – Ceramicas del Foix (Rock & Rock), T‑436/12, EU:T:2015:477, paragraph 28 and the case-law cited).

69

Where some elements of a trade mark are descriptive of the goods and services in respect of which that 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. 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 relevant consumers and to be remembered by them. That does not mean, however, that the descriptive elements of a mark are necessarily negligible in the overall impression conveyed by that mark. It is necessary, in particular, to examine whether other elements of the mark are likely to dominate, by themselves, the relevant public’s recollection of that mark (see judgment of 18 January 2023, YAplus DBA Yoga Alliance v EUIPO – Vidyanand (YOGA ALLIANCE INDIA INTERNATIONAL), T‑443/21, not published, EU:T:2023:7, paragraph 69 and the case-law cited).

70

In the present case, in the first place, it should be noted that, first, the Board of Appeal correctly concluded, in paragraph 39 of the contested decision, that the applicant had not adduced evidence of a possible meaning of the word element ‘crax’ of the contested design or of the word element ‘krax’ of the earlier mark and of any association between a possible meaning of those terms with the goods at issue. Moreover, the Board of Appeal was also right to find, in essence, that the applicant cannot rely on the coexistence of other similar national marks in the absence of evidence of their use in the relevant territory.

71

In that regard, it must be borne in mind that, according to Article 63 of Regulation No 6/2002 in its earlier version, in proceedings relating to a declaration of invalidity, as provided for in Article 25(1)(e) of that regulation in its earlier version, EUIPO’s examination is to be restricted to the facts, evidence and arguments provided by the parties and the relief sought, and that EUIPO may disregard facts or evidence which are not submitted in due time by the parties concerned. Furthermore, as regards the applicant’s argument concerning the low degree of distinctiveness of the word ‘craxuri’ in that it is frequently used as regards the goods at issue, it must be pointed out that the truth of this has not been established. The only evidence adduced by the applicant in support of that argument consists of a list of trade marks that include the word ‘craxx’ for goods in Classes 29 and 30. However, simply listing a relatively limited number of trade marks, without information making it possible to measure how much they are known by the reference public, does not support the conclusion that that public makes an association between the word ‘craxuri’ and those goods (see, to that effect, judgment of 13 April 2011, Sociedad Agricola Requingua v OHIM – Consejo Regulador de la Denominación de Origen Toro (TORO DE PIEDRA), T‑358/09, not published, EU:T:2011:174, paragraph 35). Consequently, there is no need to call into question the Board of Appeal’s assessment, arising from paragraph 42 of the contested decision, that the word element ‘crax’ has no meaning for the relevant public and, therefore, has distinctive character.

72

Second, the Board of Appeal was right to find, in paragraph 42 of the contested decision, that, in view of the fact that the word element ‘crax’ had distinctive character and because of its larger size, its central position and its particular stylisation, it was clearly distinguishable in the overall impression, in the same way as the word element ‘peynirli’, which was also meaningless and which was, therefore, distinctive in the lower part of the package. In addition, the elements ‘eti’ and ‘kitir lezzet’, although meaningless and distinctive, will play a secondary role in the overall impression on account of their small size and secondary position.

73

Third, the Board of Appeal was also right to find, in paragraph 42 of the contested decision, that the term ‘orijinal’ was similar to the Romanian equivalent ‘original’ and thus devoid of distinctive character for the goods at issue, whereas the word element ‘çubuk kraker’ could be regarded by part of the Romanian public as evoking the term ‘cub’ (meaning ‘cube’) and that the term ‘kraker’ could be regarded as evoking snacks which may commonly be referred to as ‘crackers’ and that they are therefore weak. Nevertheless, on account of their smaller size or their secondary position, all those elements will play a secondary role in the overall impression. The other elements of the contested design, namely the figurative and ornamental elements corresponding to snack sticks and to a piece of cheese, are descriptive of the goods at issue and, consequently, devoid of distinctive character. The blue package and the oval frame are of a decorative nature and therefore only play a secondary role in the overall impression conveyed by that design. The same applies to the unspecified small white element, which will have only a limited, if any, influence on the overall impression conveyed by that design on account of its small size.

74

In the second place, according to the case-law, when a sign consists of both verbal and figurative elements, the former are, in principle, considered more distinctive than the latter, because the average consumer will more easily refer to the goods in question by quoting their name than by describing the figurative elements of the sign (judgment of 7 February 2018, Packaging for ice-cream cornets, T‑794/16, not published, EU:T:2018:70, paragraph 49).

75

In that regard, it must be observed, as did the Board of Appeal in paragraphs 22 and 40 of the contested decision, that the word element ‘krax’ is the only word element of the earlier mark and that the word element ‘crax’ is a co-dominant word element with the word element ‘peynirli’ within the contested design. The word elements ‘krax’ of that mark and ‘crax’ of that contested design, which are stylised in a similar manner, in particular, in their white upper-case letters, are depicted in an ascending or descending size. In those circumstances and since all the other elements of that design play a secondary role in the overall impression or are descriptive, the Board of Appeal was right to conclude that the word element ‘krax’ was the most distinctive element making up that mark and that the word element ‘crax’ was co-dominant and accompanied by figurative elements devoid of distinctive character or which were descriptive in the contested design.

76

The applicant claims that the signs at issue are not visually similar. According to the applicant, the word element ‘eti’ of the contested design must be regarded as attracting all the attention of the relevant public. In addition, it submits that all the other word and figurative elements of that design are immediately legible and will not be perceived as merely decorative elements.

77

However, as has been noted in paragraph 75 above, the word element ‘crax’ of the contested design is the element which will attract the relevant public’s attention the most and, therefore, will have the greatest influence on the overall impression conveyed by that design.

78

In the present case, it should be observed that, visually, three out of the four letters of the distinctive and co-dominant word elements of the signs at issue coincide, namely in the sequence of letters ‘r’, ‘a’, ‘x’, all depicted in upper-case letters with a similar three-dimensional effect, slightly inclined from left to right, the size of the letters descending in the earlier mark and ascending in the contested design. Moreover, those signs differ, first, in their initial upper-case letter, namely ‘K’ and ‘C’, respectively, and, second, in the ascending or descending sequence of the size of their letters.

79

In that regard, the Board of Appeal correctly found, in paragraph 45 of the contested decision, that the differences between the signs at issue referred to in paragraph 78 above cannot outweigh the similarity created by the three identical letters stylised in a similar manner. The same applies to the word element ‘peynirli’ which is clearly separated from the word element ‘crax’ due to its position towards the bottom of the package. However, even though those signs also differ in the presence, in the contested design, of the secondary word elements ‘eti’, ‘orijinal kitir lezzet’ and ‘çubuk kraker’, as well as the backgrounds, colouring and the small white figurative element, all of which are of a decorative nature, and in the non-distinctive depiction of snack sticks and a piece of cheese, those elements have no equivalent in the earlier mark and are not capable of outweighing the similarity of the dominant or co-dominant elements ‘krax’ and ‘crax’, on account of their lack of distinctive character and their secondary size and position.

80

It follows that the Board of Appeal did not make an error of assessment in finding that there was an average degree of visual similarity in respect of the signs at issue.

81

The applicant submits that there is no degree of phonetic similarity between the signs at issue. According to the applicant, even though consumers will pronounce only one of the word elements included in the contested design, to economise on words, this will be the word element ‘eti’, which bears no similarity to the word element ‘krax’ of the earlier mark.

82

In the present case, as is apparent from paragraph 73 above, the word elements ‘orijinal’ and ‘çubuk kraker’ and all the figurative elements making up the contested design are devoid of distinctive character and are of secondary importance. Furthermore, the word elements ‘eti’ and ‘kitir lezzet’, although distinctive on account of their lack of meaning in relation to the goods at issue, are of secondary importance on account of their size and position. In addition, as is apparent from paragraph 79 above, the word elements ‘krax’ of the earlier mark and ‘crax’ of the contested design contain the same sequence of letters ‘r’, ‘a’, ‘x’, which, like the letters ‘k’ and ‘c’, will be pronounced in the same way. Thus, the signs at issue differ only in the pronunciation of the word element ‘peynirli’, which is co-dominant with the word element ‘crax’ within that design.

83

In that regard, it should be borne in mind that, according to the case-law, where consumers are faced with a mark which consists of various word elements, of which some are of secondary importance, they tend to abbreviate orally that mark comprising a number of terms in order to make it easier to pronounce (see, to that effect, judgment of 30 November 2006, Camper v OHIM – JC (BROTHERS by CAMPER), T‑43/05, not published, EU:T:2006:370, paragraph 75). It follows that the word elements ‘eti’, ‘kitir lezzet’, ‘orijinal’ and ‘çubuk kraker’ of the contested design, all of which are of secondary importance, are less likely to attract the consumer’s attention and are therefore less likely to be pronounced. Moreover, the figurative elements will not be pronounced, with the result that consumers will be more likely to refer to the goods concerned by that design, pronouncing the co-dominant elements of that design, namely the word elements ‘crax’ and ‘peynirli’.

84

Consequently, the Board of Appeal did not make an error of assessment in finding, in paragraph 46 of the contested decision, that there was an average degree of phonetic similarity in respect of the signs at issue.

85

The applicant submits that the Board of Appeal should have found that there was no conceptual similarity between the signs at issue. More specifically, it claims that the word element ‘eti’, which it alleges is the most dominant and the most distinctive element of the contested design, and the word element ‘krax’ of the earlier mark will both be perceived as fanciful and different words and that, of those signs, one is a word sign and the other a figurative sign, with the result that there is no conceptual similarity between those signs.

86

It must be borne in mind that the purpose of the conceptual comparison is to compare the ‘concepts’ which the signs at issue convey. The term ‘concept’ means, according to the definition given, for example, by the Larousse dictionary, a ‘general idea and abstract idea used to denote a specific or abstract thought which enables a person to associate with that thought the various perceptions which that person has of it and to organise knowledge about it’ (see judgment of 16 June 2021, Smiley Miley v EUIPO – Cyrus Trademarks (MILEY CYRUS), T‑368/20, not published, EU:T:2021:372, paragraph 52 and the case-law cited).

87

Similarly, according to the case-law, conceptual similarity means that the signs at issue coincide in their semantic content (see, to that effect, judgment of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 24). It follows that where the relevant public does not understand the meaning of the words or cannot attribute a particular meaning to those signs, it is not possible to make a conceptual comparison (see, to that effect, judgments of 7 February 2018, Packaging for ice-cream cornets, T‑794/16, not published, EU:T:2018:70, paragraph 76, and of 6 April 2022, Agora Invest v EUIPO – Transportes Maquinaria y Obras (TRAMOSA), T‑219/21, not published, EU:T:2022:219, paragraph 117 and the case-law cited).

88

In the present case, the co-dominant elements of the contested design and the dominant element of the earlier mark are meaningless for the relevant public (see paragraphs 71, 72 and 75 above). They cannot therefore convey a concept to the relevant public.

89

As regards the other elements of the contested design, as is apparent from paragraphs 73 and 75 above, they occupy a secondary position limiting their impact in the conceptual comparison of the signs at issue. However, that does not mean that those elements are entirely negligible. Thus, the word elements ‘orijinal’ and ‘çubuk kraker’ and the ornamental figurative elements corresponding to snack sticks and a piece of cheese of that design must be taken into consideration in that comparison, since they convey a concept of everyday consumer foodstuffs, and refer to cheese-flavoured snack sticks.

90

Thus, contrary to the finding in paragraph 47 of the contested decision, it must be held, in the light of the foregoing, that the signs at issue are conceptually different.

91

The applicant claims that the earlier mark has, in essence, a weak degree of distinctive character since the word element ‘krax’ describes the sound produced during the consumption of cereal-based snacks and on account of the coexistence of that mark with the international registration designating the European Union of the mark CRAXX, registered on 7 December 2004 under reference 0854152A for identical goods in Classes 29 and 30.

92

First, as is apparent from paragraphs 71, 75 and 88 above, the word element ‘krax’ of the earlier mark, like the element ‘crax’ of the contested design, has no meaning for the relevant public and the applicant has not adduced evidence that the word element ‘krax’ had a meaning for that public. As regards the applicant’s claim that the word element ‘krax’ is onomatopoeic in nature, an onomatopoeia of the sound produced when consuming crispy goods is not, in the present case, obvious.

93

Second, the applicant’s argument relating to the coexistence of the earlier mark with the mark CRAXX cannot succeed in order to demonstrate that, in the present case, the earlier mark has, in essence, a weak degree of distinctive character. The distinctive character of the earlier mark, whether that distinctive character derives from the inherent qualities of that mark or its reputation, concerns the capacity of that mark to identify the goods or services for which it has been registered as originating from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings (see, to that effect, judgments of 13 September 2018, Birkenstock Sales v EUIPO, C‑26/17 P, EU:C:2018:714, paragraph 31 and the case-law cited, and of 21 December 2021, Dr. Spiller v EUIPO – Rausch (Alpenrausch Dr. Spiller), T‑6/20, not published, EU:T:2021:920, paragraph 145 and the case-law cited). That distinctive character does not involve a comparison between a number of signs, but concerns only one sign, namely the earlier mark (see, to that effect, judgment of 11 June 2020, China Construction Bank v EUIPO, C‑115/19 P, EU:C:2020:469, paragraph 58).

94

Consequently, the Board of Appeal did not make any error of assessment in finding that the earlier mark had, in essence, an average degree of distinctive character.

95

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 signs 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 signs, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323 paragraph 19).

96

Moreover, for the purposes of the global assessment of the likelihood of confusion, account must be taken, in particular, of the fact that the average consumer, within the relevant public, only rarely has the chance to make a direct comparison between the different marks but must place his or her trust in the imperfect picture of them that he or she has kept in his or her mind (judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 26). In addition, a likelihood of confusion could be found to exist only if the relevant public were likely to be misled as to the commercial origin of the goods in question (see, to that effect, judgment of 24 November 2021, Jeronimo Martins Polska v EUIPO – Rivella International (Riviva), T‑551/20, not published, EU:T:2021:816, paragraph 86).

97

In the present case, the Board of Appeal found, in paragraph 51 of the contested decision, that there was a likelihood of confusion as to the commercial origin of the goods at issue in the light of consumers’ imperfect recollection of the signs at issue.

98

In that regard, first, as is apparent from paragraph 52 above, the Board of Appeal was justified in finding that the goods at issue were similar on account of their complementarity. Second, the signs at issue contain the common and, respectively, dominant and co-dominant word elements ‘krax’ in the earlier mark and ‘crax’ in the contested design, which are meaningless and which are, therefore, distinctive (see paragraphs 67 to 75 above). Third, those signs are conceptually different (see paragraphs 86 to 90 above). Fourth, the Board of Appeal was also right in finding that those signs were visually similar to an average degree (see paragraphs 77 to 80 above). In addition, the same signs have an average degree of phonetic similarity (see paragraph 84 above). Fifth, the Board of Appeal was also right in finding that the earlier mark had an average degree of distinctive character (see paragraph 94 above).

99

It follows that the relevant public, with an average level of attention, may reasonably believe, when faced with the contested design, that the goods concerned and the goods covered by the earlier mark, which are similar, have the same commercial origin.

100

In those circumstances, the Board of Appeal did not make any error in finding, in paragraph 52 of the contested decision, that there was a likelihood of confusion as to the commercial origin of the goods for the purposes of Article 25(1)(e) of Regulation No 6/2002 in its earlier version, read in conjunction with Article 36(2)(b) of the Romanian law on trade marks.

101

It follows that the first plea is unfounded and must be rejected and, accordingly, the action must be dismissed in its entirety.

102

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.

103

Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the intervener, in accordance with the form of order sought by the latter. By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is organised, it is appropriate, since such a hearing has not been organised, to order EUIPO to bear its own costs.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby: