Judgment of the General Court (Second Chamber) of 6 April 2022.Biogena GmbH & Co KG v European Union Intellectual Property Office.EU trade mark – Opposition proceedings – International registration designating the European Union – Word mark NUTRIFEM AGNUBALANCE – Earlier EU word mark NUTRIBEN – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001.Case T-370/21.

Judgment of the General Court (Second Chamber) of 6 April 2022 –Biogena v EUIPO – Alter Farmacia (NUTRIFEM AGNUBALANCE)

(Case T-370/21) ( 1 )

(EU trade mark – Opposition proceedings – International registration designating the European Union – Word mark NUTRIFEM AGNUBALANCE – Earlier EU word mark NUTRIBEN – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001)

1. EU trade mark – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Direction issued to the Office – Precluded

(Art. 263 TFEU; Regulation of the European Parliament and of the Council 2017/1001, Art. 72(6))

(see para. 21)

2. EU trade mark – Procedural provisions – Decisions of EUIPO – Observance of the rights of the defence – Scope of the principle

(European Parliament and Council Regulation 2017/1001, Art. 94(1), second sentence)

(see paras 26, 27)

3. EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Criteria for assessment

(European Parliament and Council Regulation 2017/1001, Art. 8(1)(b))

(see paras 37-39, 100)

4. EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Assessment of the likelihood of confusion – Determination of the relevant public – Attention level of the public – Health products

(European Parliament and Council Regulation 2017/1001, Art. 8(1)(b))

(see paras 41, 47, 54, 55, 108)

5. EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Word marks NUTRIFEM AGNUBALANCE and NUTRIBEN

(European Parliament and Council Regulation 2017/1001, Art. 8(1)(b))

(see paras 56, 67, 72, 92, 98, 99, 103-107)

6. EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Similarity between the goods or services in question – Criteria for assessment – Complementary nature of the goods or services

(European Parliament and Council Regulation 2017/1001, Art. 8(1)(b))

(see paras 57-59)

7. EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Similarity of the marks concerned – Assessment of the distinctive character of an element of which a trade mark is composed

(European Parliament and Council Regulation 2017/1001, Art. 8(1)(b))

(see paras 73, 74)

Operative part

The Court:

1. Annuls the decision of the Fifth Board of Appeal of EUIPO of 22 April 2021 (Case R 1208/2020-5) in so far as it concerns the goods in Class 5 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and the ‘dried kitchen herbs; preserved herbs and spices’ in Class 30 thereof;

2. Dismisses the action as to the remainder;

3. Orders each party to bear its own costs.

( 1 ) OJ C 329, 16.8.2021.