JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

3 June 2026 (*)

( EU trade mark – Opposition proceedings – International registration designating the European Union – Figurative mark O – Earlier EU figurative mark O – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 – Facts or evidence submitted for the first time before the Board of Appeal – Article 95(2) of Regulation 2017/1001 )

In Case T-267/25,

Osculati Srl, established in Milan (Italy), represented by C. Bacchini, M. Mazzitelli, E. Rondinelli, and A. Bellini, lawyers,

applicant,

v

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

defendant,

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

Olymp Bezner KG, established in Bietigheim-Bissingen (Germany),

THE GENERAL COURT (Eighth Chamber),

composed of I. Gâlea, President, T. Tóth (Rapporteur) and B. Ricziová, Judges,

Registrar: G. Mitrev, Administrator,

having regard to the written part of the procedure,

further to the hearing on 27 January 2026,

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, Osculati Srl, seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 25 February 2025 (Case R 838/2023-4) (‘the contested decision’).

Background to the dispute

2 On 16 August 2021, the applicant designated the European Union in respect of the international registration of the following figurative sign:

3 The goods in respect of which protection of the international registration at issue was sought are in Class 25 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, inter alia, to the following description: ‘Jackets [clothing]; sports jackets; rainproof jackets; warm-up jackets; light-reflecting jackets; fishermen’s jackets; combinations [clothing]; coveralls; rain boots; gloves [clothing]; fingerless gloves; jerseys [clothing]; maillots; sleeveless jerseys; baselayer tops; berets; deck shoes’.

4 On 16 February 2022, Olymp Bezner KG filed a notice of opposition to the international registration at issue in respect of the goods referred to in paragraph 3 above.

5 The opposition was based on the earlier EU figurative mark, filed on 27 October 2005 and registered on 27 July 2007 under number 4752101, reproduced below:

6 The goods covered by the earlier mark upon which the opposition was based are in Class 25 and correspond to the following description: ‘Shirts; blouses; collars; pyjamas; night shirts; neckties; knitwear, in particular pullovers, cardigans; polo shirts; T-shirts; socks; belts’.

7 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).

8 On 5 April 2023, the Opposition Division rejected the opposition, finding that there was no likelihood of confusion in relation to the goods referred to in paragraph 3 above.

9 On 20 April 2023, Olymp Bezner filed a notice of appeal with EUIPO against the decision of the Opposition Division.

10 By decision of 19 December 2023 (‘the 2023 decision’), as corrected by a decision of 11 January 2024, the Fourth Board of Appeal of EUIPO upheld the appeal brought by Olymp Bezner.

11 On 20 February 2024, the applicant brought an action before the General Court against the 2023 decision; the action was registered as Case T-98/24.

12 By a communication dated 29 April 2024, the Board of Appeal informed the parties that it intended to revoke the 2023 decision pursuant, inter alia, to Article 103 of Regulation 2017/1001. On 25 June 2024, the Board of Appeal revoked the 2023 decision.

13 By order of 27 January 2025, Osculati v EUIPO – Olymp Bezner (O) (T-98/24, not published, EU:T:2025:122), the Court held that there was no need to adjudicate on the action, which had become devoid of purpose.

14 By the contested decision, the Board of Appeal upheld the appeal brought before it. First, it found that the evidence produced by Olymp Bezner for the first time before it concerning the enhanced distinctiveness of the earlier mark was admissible. Second, it found that relevant public consisted of the general public, who were deemed to be reasonably well informed and reasonably observant and circumspect. It added that the relevant territory was that of the European Union. Third, it considered that the goods in question were similar, or complementary in certain cases. Fourth, the Board of Appeal observed, first of all, that the marks at issue were visually similar to an average degree. Next, it considered that, first, for the part of the relevant public perceiving the signs as the single letters ‘O’, they were identical phonetically, and that, second, for the part of the relevant public who do not recognise letters in the signs at issue, a phonetic comparison was not possible. Lastly, the Board of Appeal stated that a conceptual comparison was not possible. Fifth, in considering, in essence, that Olymp Bezner had proved the enhanced distinctiveness of the earlier mark, which raised its inherent distinctiveness from a low degree to a normal degree, the Board of Appeal concluded that there was a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation 2017/1001, for a non-negligible part of the relevant public, namely the German public, as regards the goods referred to in paragraph 3 above.

Forms of order sought

15 The applicant claims that the Court should:

– annul the contested decision;

– order EUIPO and Olymp Bezner to pay the costs, including those incurred in the proceedings before the Board of Appeal.

16 EUIPO contends that the Court should:

– dismiss the action;

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

Law

17 As a preliminary point, it should be observed that, as the applicant explained at the hearing in response to a question put by the Court, its heads of claim seek only the annulment of the contested decision, not its variation.

18 The applicant relies, in essence, on two pleas in law, alleging, first, infringement of Article 95(2) of Regulation 2017/1001, read in conjunction with Article 27(4) 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) or Article 54(1) of Decision No 2020-1 of 27 February 2020 of the Presidium of the Boards of Appeal on the Rules of Procedure before the Boards of Appeal (‘the Rules of Procedure of the Boards of Appeal’), and, second, infringement of Article 8(1)(b) of Regulation 2017/1001.

The first plea in law, alleging infringement of Article 95(2) of Regulation 2017/1001, read in conjunction with Article 27(4) of Delegated Regulation 2018/625 or Article 54(1) of the Rules of Procedure of the Boards of Appeal

19 The applicant submits, in essence, that the evidence produced for the first time before the Board of Appeal should not have been taken into account, since, first, it was not submitted in due time and, second, the conditions laid down for the Board of Appeal’s exercise of its discretion were not met. In that regard, the applicant states that Olymp Bezner, in its observations setting out the grounds of the appeal before the Board of Appeal, did not provide any justification vis-à-vis the requirements set out in Article 95(2) of Regulation 2017/1001, in Article 27(4) of Delegated Regulation 2018/625 and in Article 54(1) of the Rules of Procedure of the Boards of Appeal. More specifically, it observes that Annexes 6, 7, 8 and 9 were already available during the opposition proceedings and could have been produced in the course of those proceedings, and that, therefore, there was no valid reason justifying their production, for the first time, before the Board of Appeal.

20 At the hearing, in response to a question put by the Court, the applicant also stated that the practice set out in, and the interpretation of, Article 27(4) of Delegated Regulation 2018/625 fostered an approach of refraining from producing the relevant documents before the Opposition Division, and that the time limits specified for the production of evidence had to be observed.

21 EUIPO disputes the applicant’s arguments.

22 As a preliminary point, it should be noted that the applicant refers to infringement of Article 54(1) of the Rules of Procedure of the Boards of Appeal, However, since that article reproduces, in essence, the requirements set out in Article 27(4) of Delegated Regulation 2018/625, the present plea must be examined in the light of the latter article.

23 Article 95(2) of Regulation 2017/1001 provides that EUIPO may disregard facts or evidence which are not submitted in due time by the parties concerned.

24 It follows from the wording of Article 95(2) of Regulation 2017/1001 that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of the time limits to which such submission is subject under the provisions of that regulation, and that EUIPO is in no way prohibited from taking account of facts and evidence which are submitted or produced late (judgment of 27 October 2021, Jiruš v EUIPO – Nile Clothing (Racing Syndicate), T-356/20, not published, EU:T:2021:736, paragraph 23).

25 In stating that EUIPO ‘may’, in such a case, decide to disregard such evidence, Article 95(2) of Regulation 2017/1001 grants EUIPO a broad discretion to decide, while giving reasons for its decisions in that regard, whether or not to take it into account (judgments of 13 March 2007, OHIM v Kaul, C-29/05 P, EU:C:2007:162, paragraph 43, and of 27 October 2021, Racing Syndicate, T-356/20, not published, EU:T:2021:736, paragraph 24).

26 Furthermore, Article 27(4) of Delegated Regulation 2018/625 circumscribes the exercise of the discretion which is provided for in Article 95(2) of Regulation 2017/1001 as regards facts and evidence submitted for the first time before the Board of Appeal (judgment of 2 June 2021, Franz Schröder v EUIPO – RDS Design (MONTANA), T-855/19, not published, EU:T:2021:310, paragraph 26). That provision reads as follows:

‘In accordance with Article 95(2) of Regulation [2017/1001], the Board of Appeal may accept facts or evidence submitted for the first time before it only where those facts or evidence meet the following requirements:

(a) they are, on the face of it, likely to be relevant for the outcome of the case; and

(b) they have not been produced in due time for valid reasons, in particular where they are merely supplementing relevant facts and evidence which had already been submitted in due time, or are filed to contest findings made or examined by the first instance of its own motion in the decision subject to appeal.’

27 It follows that it is for the General Court to assess whether the Board of Appeal in fact exercised the broad discretion conferred on it for the purpose of deciding, in a reasoned manner and taking due account of all the relevant circumstances, whether it was necessary to take account of evidence adduced for the first time before it in order to deliver its decision (see judgment of 5 July 2017, Gamet v EUIPO – ‘Metal-Bud II’ Robert Gubała (Door handle), T-306/16, not published, EU:T:2017:466, paragraph 18 and the case-law cited). It is, furthermore, for the General Court to verify that the Board of Appeal made correct use of the discretion conferred on it by Article 95(2) of Regulation 2017/1001 (judgment of 30 November 2022, ADS L. Kowalik, B. Włodarczyk v EUIPO – ESSAtech (Accessory for wireless remote controls), T-612/21, not published, EU:T:2022:731, paragraph 36).

28 It is therefore necessary to examine whether, in the exercise of its broad discretion, the Board of Appeal complied with the cumulative conditions established by Article 27(4) of Delegated Regulation 2018/625.

29 In the present case, the Board of Appeal found, in essence, in paragraphs 26 to 28 of the contested decision, first of all, that the evidence produced for the first time before it had been filed to support the evidence already submitted before the Opposition Division in order to prove the enhanced distinctiveness of the earlier mark and to challenge the Opposition Division’s findings relating to that distinctiveness. Next, the Board of Appeal explained that the enhanced distinctiveness of the earlier mark was a key factor in the present proceedings and that, therefore, the evidence produced for the first time before it was likely to be relevant for the outcome of the case. Lastly, it stated that the applicant had had the opportunity to comment on that evidence. The Board of Appeal therefore agreed to take account of that evidence.

30 First, with regard to the first condition set out in paragraph 26 above, the evidence produced for the first time before the Board of Appeal is, on the face of it, likely to be relevant for answering the question of whether the earlier mark has acquired a high degree of distinctiveness through use. The evidence produced for the first time before the Board of Appeal is intended precisely to demonstrate the recognition of the earlier mark on the market acquired through use in accordance with Article 27(3)(b) of Delegated Regulation 2018/625.

31 Second, as regards the second condition referred to in paragraph 26 above, it should be recalled that supplementary evidence is characterised by a link with other evidence previously submitted in due time which it supplements (judgment of 26 July 2023, Guma Holdings v EUIPO – XTB (XTRADE), T-67/22, not published, EU:T:2023:436, paragraph 25).

32 In that regard, it must be noted that Olymp Bezner had relied on and submitted before the Opposition Division a significant volume of facts and evidence intended to prove use of the earlier mark in Germany for ‘shirts’, including a declaration by its managing director, a considerable number of invoices and several photographs and extracts from its catalogues, intended to demonstrate that it sells a large number of shirts bearing that mark in Germany.

33 Before the Board of Appeal and in response to the decision of the Opposition Division, Olymp Bezner also produced some evidence for the first time, namely:

– extracts from the websites statista.com and statista.de, intended to demonstrate Olymp Bezner’s dominant position on the German market for shirts in 2021;

– Annex 6, which is a photograph of the Olymp logistics centre prominently featuring the earlier mark;

– Annex 7, which is a photograph of Olymp Bezner’s managing director with a well-known professional sailor, in which the latter is wearing clothing prominently featuring the earlier mark;

– Annex 8, which is a publication supporting Annexes 6 and 7 and contains a detailed description of Olymp Bezner’s marketing campaign;

– Annex 9, which is a collection of extracts from German press publications intended to demonstrate that German consumers are aware of Olymp Bezner’s shirts as shirts with an ‘O’, as well as that company’s dominant position on the German market for shirts.

34 In addition, it must be noted, first, that that evidence contains information relating to the use of the earlier mark and is intended to supplement the evidence produced before the Opposition Division, in particular the extracts from the website statista.com demonstrating Olymp Bezner’s position on the market for men’s shirts in Germany, which support the invoices and sales figures set out in the declaration and the German press publications referring to the earlier mark, which supplement the declaration, invoices and catalogue extracts. It follows that that evidence supports the other evidence of use previously submitted in due time before the Opposition Division, and that it supplements that initial evidence.

35 Second, it has been held that, where the Cancellation Division has criticised the evidence submitted before it, in particular on the ground that it was insufficient, the applicant was entitled to submit supplementary evidence relating to that initial evidence before the Board of Appeal in order to respond to that criticism (see, to that effect, judgment of 6 November 2024, Vintae Luxury Wine Specialists v EUIPO – Grande Vitae (vintae), T-136/23, not published, EU:T:2024:779, paragraph 32 and the case-law cited). That is also the case here, because the Opposition Division considered that the evidence produced by the opponent did not demonstrate that the earlier mark had acquired a high degree of distinctiveness through use.

36 That assessment cannot be called into question by the applicant’s arguments.

37 In that regard, with respect to the complaints concerning Olymp Bezner’s lack of justification vis-à-vis the evidence produced for the first time before the Board of Appeal, it should be recalled that neither the rules applicable in the present case nor the case-law that exists in such matters states that the justification, by the party concerned, of the submission of facts or evidence for the first time before the Board of Appeal is essential in order for the Board of Appeal to take account of them, when exercising the discretion conferred on it by Article 95(2) of Regulation 2017/1001 (see, by analogy, judgment of 15 January 2025, ADS L. Kowalik, B. Włodarczyk v EUIPO – ESSAtech (Accessory for wireless remote controls), T-1064/23, not published, EU:T:2025:8, paragraph 42).

38 In addition, with regard to the applicant’s complaint that the evidence in question was already available during the opposition proceedings, it should be noted that Article 27(4) of Delegated Regulation 2018/625 does not require the party submitting such evidence to show that it was impossible to submit it at an earlier stage (judgment of 23 October 2024, Olvi v EUIPO – Koninklijke De Kuyper (FIZZ Cider), T-1132/23, not published, EU:T:2024:726, paragraph 28).

39 In respect of the EUIPO guidelines concerning the reasons that must be set out vis-à-vis the late submission of facts or evidence, it should be recalled that those guidelines are not binding legal acts for the purpose of interpreting provisions of EU law (judgments of 6 June 2019, Deichmann v EUIPO, C-223/18 P, not published, EU:C:2019:471, paragraph 49, and of 5 June 2024, Habitat Barcelona Unión Constructora v EUIPO – Acomodeo Marketplace (ACOMODEO), T-365/23, not published, EU:T:2024:361, paragraph 88).

40 In any event, it is apparent from the observations setting out the grounds of appeal before the Board of Appeal that Olymp Bezner set out the negative findings of the Opposition Division concerning the earlier mark’s enhanced distinctiveness, stated that the evidence produced before the Opposition Division demonstrated such distinctiveness and, subsequently, produced supplementary evidence to confirm that distinctiveness.

41 Furthermore, with regard to the complaint that the practice set out in, and the interpretation of, Article 27(4) of Delegated Regulation 2018/625 foster an approach of refraining from producing the relevant documents before the Opposition Division, it must be noted that, although compliance with the prescribed time limits cannot actually be abused by a party producing facts or evidence for the first time before the Board of Appeal, that party does however remain free to produce evidence, for example supplementary evidence, after the evidence which it had initially produced was deemed insufficient by the Opposition Division (see, to that effect, judgment of 4 June 2015, Stayer Ibérica v OHIM – Korporaciya ‘Masternet’ (STAYER), T-254/13, not published, EU:T:2015:362, paragraph 42).

42 As for the arguments raised by the applicant at the hearing, to the effect that the abovementioned Annexes 7 and 8 postdate the date on which the European Union was designated in the contested international registration, it should be noted that, according to Article 84(1) of the Rules of Procedure of the General Court, no new plea in law or argument may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure or amplifies a plea put forward previously, whether directly or by implication, in the original application and which is closely connected therewith (see judgment of 26 April 2023, Volkswagen v EUIPO – XTG (XTG), T-153/22, not published, EU:T:2023:217, paragraph 66 and the case-law cited). It must be noted that, in the present case, those arguments were raised for the first time at the hearing and are not based on matters of law or of fact which came to light in the course of the proceedings; nor do they amplify another argument put forward previously, whether directly or by implication, in the original application. Those arguments must therefore be rejected as inadmissible. In any event, it should also be noted that those annexes did not serve as a basis for any specific finding made in the contested decision.

43 It follows that the Board of Appeal did not make a manifest error of assessment in concluding, in essence, that the conditions set out in Article 27(1)(b) of Delegated Regulation 2018/625 were met.

44 In the light of the foregoing considerations, the Board of Appeal was entitled to find that the evidence submitted for the first time before it was admissible. The first plea must therefore be rejected as unfounded.

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

45 The applicant disputes, in essence, the existence of a likelihood of confusion on the part of the relevant public, on the ground that the Board of Appeal made errors concerning the assessment of the degree of similarity between the signs at issue, the assessment of the distinctiveness of the earlier mark, the assessment of the degree of similarity between the goods and the assessment of the relevant public.

46 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.

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

48 For the purpose of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those 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).

49 Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumers of the goods in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (see, to that effect, judgment of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T-81/03, T-82/03 and T-103/03, EU:T:2006:397, paragraph 76 and the case-law cited).

The relevant public

50 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).

51 In paragraphs 34 to 36 of the contested decision, the Board of Appeal found, in essence, that the goods in question were aimed at the general public, who were deemed to be reasonably well informed and reasonably observant and circumspect. Furthermore, the Board of Appeal stated that it was necessary to take into account the perception of the marks at issue by consumers within the whole of the European Union and that it would focus its assessment on the perception of the German-speaking public.

52 The applicant submits, in essence, first, that the relevant public for the goods covered by the mark applied for consists of specialised consumers or, in any event, of niche sector consumers; second, that the general public at whom the earlier mark is aimed are interested in clothing and fashion items in general; and, third, that the relevant public will display a higher degree of attention because of loyalty to the mark applied for.

53 EUIPO disputes the applicant’s arguments.

54 In that regard, it should be noted, as EUIPO submits, that the goods in question covered by the marks at issue are aimed at the general public, who are deemed to be reasonably well informed and reasonably observant and circumspect. Those marks cover clothing for everyday use and, although some of the contested goods also include goods with a specific public or purpose (light-reflecting jackets, fishermen’s jackets, deck shoes) or are for specific weather conditions (rainproof jackets, rain boots), they can still be used as part of a regular outfit and are purchased by the average consumer with an average degree of attention, since they do not require any specific knowledge or technical specialisation.

55 That assessment cannot be called into question by the applicant’s arguments.

56 First, with regard to the argument that the relevant public for the goods covered by the mark applied for consists of specialised consumers or, in any event, of niche sector consumers, it must be noted that the use that the applicant intends to make of the mark applied for is irrelevant in that context. In opposition proceedings, EUIPO may only take account of the list of goods and services in respect of which an application is made as it appears in the trade mark application, subject to any amendments thereto. In that regard, it should, moreover, be recalled that the marks at issue cover goods in Class 25, in respect of which it follows from the case-law that the degree of attention of consumers when purchasing those goods is average (see judgment of 15 December 2021, Rotondaro v EUIPO – Pollini (COLLINI), T-69/21, not published, EU:T:2021:893, paragraphs 38 and 39 and the case-law cited).

57 Second, as regards the argument that the general public at whom the earlier mark is aimed are interested in clothing and fashion items in general, such that they will not be interested in the goods covered by the mark applied for, which are generally distant from fashion trends, it should be noted, as the Board of Appeal rightly submitted, that the contested goods can nevertheless be used as part of a regular outfit and can be purchased by an average consumer with an average degree of attention. Third, as for the argument that the relevant public will display a higher level of attention as a result of loyalty to the mark applied for, it should be recalled that, as follows from paragraph 56 above, in opposition proceedings, EUIPO may only take account of the list of goods and services in respect of which an application is made as it appears in the trade mark application, subject to any amendments thereto. Alleged loyalty to the mark applied for or the use that the applicant intends to make of that mark are therefore irrelevant in the present case. In addition, even assuming that the purchase of the goods at issue may require a high degree of attention on the part of some of the relevant public, such a possibility is irrelevant since, according to case-law, when assessing the likelihood of confusion, account must be taken of the public whose level of attention is the lowest (see judgment of 15 December 2021, COLLINI, T-69/21, not published, EU:T:2021:893, paragraph 40 and the case-law cited).

58 The Board of Appeal was therefore right to find that the goods covered by the mark applied for were aimed at the general public, who were deemed to be reasonably well informed and reasonably observant and circumspect and whose level of attention is average.

59 The applicant’s arguments concerning the relevant public must therefore be rejected.

The comparison of the goods

60 In assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods and services should be taken into account. Those factors include, inter alia, their nature, their intended purpose and their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account, such as the distribution channels of the goods concerned (see judgment of 14 May 2013, Sanco v OHIM – Marsalman (Representation of a chicken), T-249/11, EU:T:2013:238, paragraph 21 and the case-law cited).

61 In paragraphs 70 to 74 of the contested decision, the Board of Appeal found, in essence, first, that the ‘jackets [clothing]; sports jackets; rainproof jackets; warm-up jackets; light-reflecting jackets; fishermen’s jackets; combinations [clothing]; coveralls; gloves [clothing]; fingerless gloves; jerseys [clothing]; maillots; sleeveless jerseys; baselayer tops; berets’, covered by the mark applied for, had at least an average degree of similarity to the ‘shirts’ covered by the earlier mark; second, that the ‘rain boots’ and ‘deck shoes’ covered by the mark applied for also had an average degree of similarity to the ‘shirts’ covered by the earlier mark; and, third, that some of the goods covered by the mark applied for could also be regarded as complementary to the ‘shirts’ covered by the earlier mark.

62 The applicant claims, in essence, that the Board of Appeal was wrong to find that the goods covered by the mark applied for had, at the very least, an average degree of similarity to the ‘shirts’ covered by the earlier mark, and wrong to find that all the goods compared could, in addition to their primary function, have a common aesthetic function by jointly contributing to the external image of the relevant consumer, and wrong to find that some of the goods covered by the mark applied for and the ‘shirts’ covered by the earlier mark could be regarded as complementary. On the contrary, the applicant argues that the ‘sports jackets, rainproof jackets, warm-up jackets, light-reflecting jackets, fishermen’s jackets, combinations [clothing], rain boots, maillots, baselayer tops’ and ‘deck shoes’ differ from the ‘shirts’ covered by the earlier mark in terms of their nature, method of use and intended purpose, since they are generally not manufactured, sold or supplied by the same or economically linked undertakings and they are not addressed to the same public. The applicant adds that the goods covered by the mark applied for are related to the nautical sector and to sports, thus serving the purpose of protecting the human body in particular conditions.

63 EUIPO disputes the applicant’s arguments.

64 In the present case, it should be noted that, as regards the ‘jackets; sports jackets; rainproof jackets; warm-up jackets; light-reflecting jackets; fishermen’s jackets; combinations [clothing]; coveralls; gloves [clothing]; fingerless gloves; jerseys [clothing]; maillots; sleeveless jerseys; baselayer tops’ and ‘berets’ covered by the mark applied for, as EUIPO rightly states, those goods coincide in their nature with the ‘shirts’ covered by the earlier mark, as they are articles of clothing, and in their general purpose, namely to dress the human body, can be manufactured using the same materials by the same or economically linked undertakings and generally be sold or supplied in the same outlets to the same consumers. As for the ‘rain boots’ and ‘deck shoes’ covered by the mark applied for, it should be noted, as EUIPO submits, that those goods and the ‘shirts’ covered by the earlier mark have the same general intended purpose, namely to protect different parts of the human body, can be sold alongside one another in both retail establishments and more specialised shops, and can be designed or manufactured by the same undertakings. Furthermore, it follows from the case-law on this issue that ‘clothing’ has already been found to be similar to ‘footwear’ (judgments of 16 December 2009, Giordano Enterprises v OHIM – Dias Magalhães & Filhos (GIORDANO), T-483/08, not published, EU:T:2009:515, paragraph 20; of 10 October 2019, Biasotto v EUIPO – Oofos (OOF), T-453/18, not published, EU:T:2019:733, paragraph 52; and of 17 November 2021, Soapland v EUIPO – Norma (Manòu), T-504/20, not published, EU:T:2021:789, paragraph 54).

65 Therefore, the Board of Appeal was right to consider that the goods covered by the mark applied for and the ‘shirts’ covered by the earlier mark had an average degree of similarity.

66 That assessment cannot be called into question by the applicant’s arguments.

67 First, the applicant submits that the ‘sports jackets, rainproof jackets, warm-up jackets, light-reflecting jackets, fishermen’s jackets, combinations [clothing], rain boots, maillots, baselayer tops’ and the ‘deck shoes’ covered by the mark applied for differ from the ‘shirts’ covered by the earlier mark in their nature, their method of use and their intended purpose, and that the former are goods related to the nautical sector and to sports. In that regard, it must be noted, as EUIPO submits, that those goods have the same general intended purpose, namely to protect different parts of the human body, and that they can be sold alongside one another in both major retail establishments and in more specialised shops. Furthermore, they can be designed and manufactured by the same undertakings.

68 Second, the applicant claims that the ‘rain boots’ and ‘deck shoes’ covered by the mark applied for have a specific intended purpose and specific functions which distinguish them from the ‘shirts’ covered by the earlier mark. In that regard, it should be noted, as EUIPO submits, that the general purpose of those goods is to protect different parts of the human body. The fact that ‘deck shoes’ are designed to prevent damage to ship decks cannot, however, call into question their primary purpose, which is to provide protection for feet.

69 Third, the applicant claims that the Board of Appeal was wrong to find that all the goods compared could, in addition to their primary function, have a common aesthetic function by jointly contributing to the external image of the relevant consumer, based on the assumption that it is common ground that the relevant public is in the habit of wearing functional and outdoor-inspired items of clothing. Assuming that, by that argument, which, moreover, is unsubstantiated, the applicant is again seeking to challenge the definition of the relevant public, reference should be made to paragraphs 54 to 59 above.

70 Fourth, the applicant submits that the Board of Appeal was wrong to find that some of the goods covered by the mark applied for and the ‘shirts’ covered by the earlier mark could be regarded as complementary. In that regard, it should be noted that the Board of Appeal put forward that line of reasoning for the sake of completeness. Thus, since the applicant’s argument seeks to dispute a ground which was included in the contested decision for the sake of completeness, it must be held to be ineffective (see, to that effect, judgments of 15 March 2018, Marriott Worldwide v EUIPO – Graf (Representation of a winged bull), T-151/17, not published, EU:T:2018:144, paragraph 22, and of 6 October 2021, Kondyterska korporatsiia ‘Roshen’ v EUIPO – Krasnyj Octyabr (Representation of a lobster), T-254/20, not published, EU:T:2021:650, paragraph 92).

71 The applicant’s arguments relating to the comparison of the goods must therefore be rejected.

The comparison of the signs

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

– The visual similarity

73 In paragraphs 45 to 47 of the contested decision, the Board of Appeal found, in essence, that a non-negligible part of the relevant public would immediately perceive in the two signs at issue a stylised representation of the letter ‘O’. The impact of the differences between the two signs, namely, on the one hand, the vertical division of the letter ‘O’ and the colours of the sign applied for, and, on the other hand, the horizontal division in the lower part of the sign of the earlier mark, have only a limited impact in the global assessment of the visual similarity of those signs. In addition, the colours used in the mark applied for are not, according to the Board of Appeal, particularly original. In view, in particular, of the structure of those signs, they have an average degree of visual similarity. Moreover, if the letter ‘O’ were not perceived visually, it would, in the Board of Appeal’s view, nevertheless have to be found that there is an average degree of visual similarity.

74 First, the applicant submits, in essence, that the overall impression produced by the signs at issue is so different that the relevant public will not make a link between those signs. Second, it claims that it is a matter of common knowledge that the rectangular shape with rounded corners of the earlier mark derives from the simple letter ‘O’ in the alphabet, as represented in the commonly available font Microgramma D Extended Bold. Third, the applicant refers to judgments in which the General Court held that the stylistic and graphic differences between signs were clearly visible, all the more so since they were very short elements, consisting of a single letter.

75 EUIPO disputes the applicant’s arguments and considers the applicant’s second argument to be inadmissible since it has been raised for the first time before the Court.

76 As a preliminary point, as regards the applicant’s argument that it is common knowledge that the rectangular shape with rounded corners of the earlier mark merely derives from the letter ‘O’ in the alphabet, as represented in the commonly available font Microgramma D Extended Bold, it must be noted, as EUIPO submits, that that is a new argument. However, under Article 188 of the Rules of Procedure, the pleadings of the parties cannot change the subject matter of the proceedings before the Board of Appeal. It is for the Court, in the present dispute, to review the legality of decisions of the Boards of Appeal. Consequently, the Court’s review cannot go beyond the factual and legal context of the dispute as it was brought before the Board of Appeal. Likewise, the applicant does not have the power to alter before the Court the terms of the dispute as delimited in the respective claims and allegations submitted by itself and by the intervener (judgment of 15 June 2022, Tubes Radiatori v EUIPO – Antrax It (Radiator for heating), T-380/20, not published, EU:T:2022:359, paragraph 55). Therefore, that argument must be rejected as inadmissible.

77 Next, it must be recalled that the graphic stylisation requires a detailed examination on the part of consumers, who do not adopt a particularly attentive approach when confronted with single-letter signs (judgment of 20 July 2017, Diesel v EUIPO – Sprinter megacentros del deporte (Representation of a curved and angled line), T-521/15, not published, EU:T:2017:536, paragraph 49).

78 In the present case, it is true that there are differences between the signs at issue. First, the shape of the letter ‘O’ is divided vertically in the middle of the sign of the mark applied for and horizontally in the lower part of the sign of the earlier mark and, second, the sign applied for contains colours.

79 However, those differences cannot outweigh the visual similarity of the signs at issue. First of all, a non-negligible part of the relevant public will immediately perceive in the two signs a stylised representation of the letter ‘O’, as a rectangular shape with rounded corners. Next, the proportions of those two signs are comparable, as is the thickness of their lines. Although they are not closed letters ‘O’ or closed rectangles, in both cases the two signs appear as a unit, and therefore as a single element, with the same overall structure, namely with the same height and the same width. In addition, it should be noted that, even if the letter ‘O’ were not perceived visually, it would still have to be found that there are overall similarities between the signs at issue, since they both reproduce a similar rectangular symbol in the same proportions, but divided at different angles.

80 It follows that, in the light of the characteristics of the elements making up the marks at issue, it must be held that there is an average degree of visual similarity between the signs at issue taken as a whole, both for the part of the relevant public who will perceive the letter ‘O’ and for the part who will not perceive that letter.

81 The applicant’s arguments relating to the visual similarity must therefore be rejected.

– The phonetic and conceptual similarity

82 In paragraphs 48 and 49 of the contested decision, the Board of Appeal found, in essence, that the part of the relevant public who would perceive the two signs as single letters ‘O’ would pronounce them in the same way, thus leading to their phonetic identity. As for the part of the relevant public who would not recognise letters in those signs, the Board of Appeal considered that a phonetic comparison was not possible. In addition, in paragraphs 50 and 51 of the contested decision, the Board of Appeal found that, for the part of the relevant public who would recognise the letter ‘O’ in the two signs, those signs did not convey any meaning in relation to the goods in question, meaning that a conceptual comparison was not possible. For the part of the relevant public who would not recognise letters in the two signs, the signs would also have no discernible semantic content or specific meaning that would enable a conceptual comparison of the marks at issue.

83 Those assessments are not disputed.

The distinctiveness of the earlier mark

84 The relevant factors in the present case include the distinctiveness of the earlier mark, which determines the scope of its protection. The Court of Justice has already held that, the more distinctive the trade mark, the greater will be the likelihood of confusion (see judgment of 12 June 2019, Hansson, C-705/17, EU:C:2019:481, paragraph 42 and the case-law cited).

85 In paragraphs 54 to 64 of the contested decision, the Board of Appeal found, in essence, that the inherent distinctiveness of the earlier mark had to be regarded as weak. However, it found that Olymp Bezner had proved the enhanced distinctiveness of the earlier mark for ‘shirts’, in Class 25, on German territory. Thus, it considered that, despite the earlier mark’s low degree of inherent distinctiveness, it had a normal degree of distinctiveness in respect of those goods and in that territory.

86 First, the applicant submits, in essence, that, in view of the differences between the two signs at issue and in view of the lack of similarity or, at most, the low degree of visual similarity between those signs, any enhanced distinctiveness of the earlier mark cannot be relevant in the present case. Second, it argues that the evidence relates to the territory of a single Member State, Germany, and that there is no proof that the German public constitutes a significant part of the public of the European Union in relation to the goods claimed. Third, the applicant submits that the evidence produced by Olymp Bezner is, in itself, insufficient to satisfy the criteria required to establish enhanced distinctiveness.

87 EUIPO disputes the applicant’s arguments.

88 In that regard, first, the Board of Appeal found that the inherent distinctiveness of the earlier mark had to be regarded as weak, since it was not highly stylised or elaborate. That finding is not disputed by the applicant.

89 Second, with regard to the enhanced distinctiveness acquired through use in Germany, it should be recalled that the existence of a high level of distinctiveness, as a result of the public’s recognition of a mark on the market, necessarily presupposes that at least a significant part of the relevant public is familiar with it, without its necessarily having to have a reputation within the meaning of Article 8(5) of Regulation 2017/1001. It is not possible to state in general terms, for example, by referring to given percentages relating to the degree of recognition attained by the mark within the relevant section of the public, that a mark has a highly distinctive character. Nevertheless, it must be acknowledged that there is a certain interdependence between the public’s recognition of a mark and its distinctive character, in that the more the mark is recognised by the target public, the more the distinctive character of that mark is strengthened. In order to assess whether a mark has a highly distinctive character as a result of the public’s recognition of it, all the relevant facts of the case must be taken into consideration, in particular the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant section of the public which, because of the mark, identifies the goods or services as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (see, to that effect, judgment of 12 July 2006, Vitakraft-Werke Wührmann v OHIM – Johnson’s Veterinary Products (VITACOAT), T-277/04, EU:T:2006:202, paragraphs 34 and 35 and the case-law cited).

90 In the present case, Olymp Bezner produced evidence demonstrating the enhanced distinctiveness of the earlier mark for the German public. It established an intensive, long-standing use of that mark in Germany for ‘shirts’, by producing sample invoices, extracts from its catalogues, a declaration by its managing director, and proof that the shirts distributed bore the earlier mark. That evidence is supplemented by the evidence produced before the Board of Appeal, in particular a study drawing on extracts from the website statista.com demonstrating Olymp Bezner’s dominant position on the German market for shirts in 2021 and its turnover, as well as by a large number of German press publications produced showing that German consumers were well aware of the shirts sold by Olymp Bezner and referred to them as ‘shirts with the O’.

91 Thus, the Board of Appeal did not make an error of assessment in finding that Olymp Bezner had proved the enhanced distinctiveness of the earlier mark for some of the goods upon which the opposition was based, namely for ‘shirts’ in Class 25 on German territory. Therefore, despite the low degree of inherent distinctiveness of the earlier mark, the latter must be regarded as having a normal degree of distinctiveness in respect of those goods and that territory.

92 That assessment cannot be called into question by the applicant’s arguments.

93 First, with regard to the argument that any enhanced distinctiveness of the earlier mark cannot be relevant in the present case because of the differences between the two signs and the lack of similarity between them or, at most, their low degree of visual similarity, it must be observed that, contrary to what the applicant claims, it follows from paragraphs 80 to 83 above that the marks at issue have an average degree of visual similarity and are phonetically identical for the part of the relevant public who will perceive the signs at issue as letters ‘O’.

94 Second, as regards the applicant’s argument that the evidence relates only to German territory and that there is no proof that the German public constitutes a significant part of the public of the European Union in relation to the goods claimed, it must be recalled that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (judgment of 27 June 2019, Sandrone v EUIPO – J. García Carrión (Luciano Sandrone), T-268/18, EU:T:2019:452, paragraph 92). Furthermore, a finding that there is a likelihood of confusion for a not insignificant part of the relevant public is sufficient to uphold an opposition brought against an application for registration of a mark (judgment of 24 June 2014, Hut.com v OHIM – Intersport France (THE HUT), T-330/12, not published, EU:T:2014:569, paragraph 58). Consequently, those arguments of the applicant must be rejected.

95 Third, as for the applicant’s argument that the evidence produced by Olymp Bezner is, in itself, insufficient to establish enhanced distinctiveness, it should be noted as EUIPO submits, that the applicant has not put forward a line of argument to substantiate that claim, with the result that it cannot succeed.

96 The applicant’s arguments relating to the distinctiveness of the earlier mark must therefore be rejected.

The likelihood of confusion

97 In paragraphs 75 to 85 of the contested decision, the Board of Appeal found, in essence, that the visual aspect was of particular importance in the assessment of the likelihood of confusion in the present case. Next, it observed that, in view of the average degree of visual similarity between the signs at issue, the average degree of distinctiveness of the earlier mark, other relevant factors and their mutual independence, a likelihood of confusion on the part of the German public cannot be excluded. Lastly, it found that the decisions of the Boards of Appeal referred to by the applicant concerned different signs and that each case had to be assessed by reference to its particular aspects.

98 According to settled case-law of the Court of Justice, the existence of a likelihood of confusion depends on numerous elements, in particular the recognition of the trade mark on the market, the association which can be made with the used or registered sign, and the degree of similarity between the trade mark and the sign and between the goods or services identified. The likelihood of confusion must therefore be assessed globally, taking into account all the relevant factors of the particular case (see judgment of 12 June 2019, Hansson, C-705/17, EU:C:2019:481, paragraph 41 and the case-law cited).

99 A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C-39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, VENADO with frame and others, T-81/03, T-82/03 and T-103/03, EU:T:2006:397, paragraph 74).

100 Moreover, it should be borne in mind that, generally, in clothes shops, customers can themselves choose the clothes they wish to buy or be assisted by the sales staff. Whilst oral communication in respect of the goods and the trade mark is not excluded, the choice of the item of clothing is generally made visually. Therefore, the visual perception of the marks at issue will generally take place prior to purchase. Accordingly, the visual aspect plays a greater role in the global assessment of the likelihood of confusion (judgment of 23 October 2015, Calida v OHIM – Quanzhou Green Garments (dadida), T-597/13, not published, EU:T:2015:804, paragraph 71).

101 The applicant submits that the Board of Appeal incorrectly assessed the likelihood of confusion and complains that the Board of Appeal did not take account of all the relevant elements of the case.

102 EUIPO disputes the applicant’s arguments.

103 In the present case, it follows from paragraphs 50 to 95 above, first, that the goods in question are aimed at the general public whose level of attention is average; second, that the goods covered by the mark applied for and the ‘shirts’ covered by the earlier mark have an average degree of similarity; third, that the marks at issue have an average degree of visual similarity and are phonetically identical for the German part of the relevant public who will perceive the signs at issue as letters ‘O’; and, fourth, that earlier mark has an average degree of distinctiveness for shirts in Germany.

104 It follows that, in the context of a global assessment of the likelihood of confusion, there is, in the present case, a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001. Therefore, the Board of Appeal did not make an error of assessment in finding that such a likelihood of confusion existed.

105 That assessment is not invalidated by the applicant’s argument that, in essence, the Board of Appeal did not attach sufficient weight to the visual differences between the two signs at issue. It should be noted, in that regard, that the differences identified in paragraph 78 above cannot outweigh the visual similarity of the signs at issue. Furthermore, in the case of goods in the clothing and fashion sectors, it is common for the same mark to be configured in different ways according to the goods which it designates or the relevant periods, meaning that it is conceivable that the relevant public may regard the goods covered by the marks at issue as belonging to two distinct product ranges originating from the same undertaking (see, to that effect, judgment of 10 September 2019, Oakley v EUIPO – Xuebo Ye (Representation of a discontinuous ellipse), T-744/18, not published, EU:T:2019:568, paragraph 68). In addition, while the visual aspect is of greater importance in the present case, pursuant to the case-law cited in paragraph 100 above, the phonetic aspect is, however, still a relevant factor in the global assessment of the likelihood of confusion, as are all the factors referred to in paragraph 103 above.

106 In the light of all the foregoing considerations, since none of the pleas relied on by the applicant in support of its claims are upheld, the action must be dismissed in its entirety.

Costs

107 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.

108 Since a hearing was held and the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1. Dismisses the action;

2. Orders Osculati Srl to pay the costs.

Gâlea

Tóth

Ricziová

Delivered in open court in Luxembourg on 3 June 2026.

V. Di Bucci

M. van der Woude

Registrar

President

---

* Language of the case: English.