(EU trade mark— Opposition proceedings— International registration designating the European Union— Figurative mark LUMIN8— Earlier EU word mark LUMI— Relative ground for refusal— Likelihood of confusion— Article8(1)(b) of Regulation (EU) 2017/1001

62On the basis of all of the findings that it made as regards the relevant public, the comparison of the goods and the comparison of the signs, the Board of Appeal found, in paragraph67 of the contested decision that there was a likelihood of confusion, within the meaning of Article8(1)(b) of Regulation 2017/1001, between the marks at issue with regard to the goods concerned, even taking into account a higher level of attention on the part of the relevant public. In particular, as is apparent from paragraphs60 to 62 of that decision, it found that such a likelihood of confusion existed, inter alia, on account of the identity of the goods at issue, the normal degree of distinctiveness of the earlier mark at issue and the overall visual, phonetic and, at least for part of the relevant public, conceptual similarity of the signs at issue.

63In that regard, the Board of Appeal stated, in paragraph61 of the contested decision, that the presence of the letter ‘n’, the number 8 and the banal figurative elements of the mark applied for were not likely to influence the consumer’s perception and did not call that overall similarity of the signs at issue into question. Furthermore, the Board of Appeal pointed out, in paragraphs 62 and 63 of that decision, that, even if the earlier mark at issue were to be regarded as having a low degree of distinctiveness for the whole of the relevant public owing to the meaning of the term ‘lumi’ with regard to the goods in question, that would not be a sufficient reason to exclude a likelihood of confusion between the marks in question, because the mark applied for reproduced in its entirety the sole element ‘lumi’ of the earlier mark at issue.

64By the fourth part of its single plea, the applicant submits, in essence, that the Board of Appeal incorrectly assessed the factors which are relevant with regard to the global assessment of the likelihood of confusion. In particular, the applicant submits that, in view of the marks at issue, there can be no doubt that the overall consideration of the case, taking into account the perceptions of the relevant public and the interdependence between the similarity of the signs at issue and that of the goods concerned, leads to the conclusion that there is no likelihood of confusion between the marks at issue.

65In that regard, the applicant submits that it must be taken into account that, according to settled case-law, it is necessary to examine together the visual, phonetic and conceptual aspects of the similarity between the signs at issue and to ascertain if they can counteract one another. It maintains that it is particularly true that a total absence or low degree of similarity in relation to the phonetic aspect, to which a particularly large amount of importance is attributed, is therefore sufficient to counteract a low degree of similarity in relation to the visual or conceptual aspects, with the consequence that, from the overall perspective, absolutely no or even just a low degree of similarity may be deemed to exist. The applicant states that, if it is held, in the present case, that there is absolutely no similarity between the trade marks at issue from a phonetic or conceptual perspective, that aspect then counteracts any possible low degree of visual similarity. It submits that the same, of course, applies vice versa.

66EUIPO disputes the merits of that part of the plea.

67In that regard, as has been pointed out in paragraph16 above, according to settled case-law, 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. According to that case-law, 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 (see judgment of 30June 2015, La Rioja Alta v OHIM— Aldi Einkauf (VIÑA ALBERDI), T‑489/13, EU:T:2015:446, paragraph68 and the case-law cited).

68A 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 29September 1998, Canon, C-39/97, EU:C:1998:442, paragraph17, and of 14December 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, paragraph74).

69For the purposes of that global assessment, the average consumer of the category of goods concerned is deemed to be reasonably well informed and reasonably observant and circumspect. However, account should be taken of the fact that the average consumer only rarely has the chance to compare the various marks directly and must therefore rely on his imperfect recollection of them. 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 (judgment of 22June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph26).

70As regards the applicant’s argument that the lack, in the present case, of phonetic and conceptual similarity between the signs at issue counteracts any low degree of visual similarity that there might be, it is sufficient to state, as has been examined in the context of the comparison of the signs in paragraphs22 to 61 above, that, since there is, on the contrary, an average degree of visual and phonetic similarity and, at least for part of the relevant public, a low degree of conceptual similarity between the signs at issue, the Board of Appeal was fully entitled to find, in paragraph58 of the contested decision, that, ‘overall’, the signs at issue were ‘similar to an average degree’. The counteraction invoked by the applicant could not therefore apply. Consequently, that argument cannot reasonably succeed.

71Furthermore, the Board of Appeal’s assessment, in paragraph39 of the contested decision, regarding the normal degree of distinctiveness of the earlier mark at issue, an assessment which has not, moreover, been formally challenged by the applicant before the Court, must be upheld.

72In the present case, in view of all the factors relevant in the context of a global assessment of the likelihood of confusion between the marks at issue and, in particular, of the identity of the goods at issue (see paragraphs20 and 21 above), the overall visual, phonetic and, at least for part of the relevant public, conceptual similarity of the signs at issue (see paragraphs36, 51 and 61 above) and the normal degree of distinctiveness of the earlier mark at issue (see paragraph71 above), it must be held that there is a likelihood of confusion between the marks at issue on the part of the relevant public referred to in paragraph18 above, even when a higher level of attention on the part of that public is taken into account.

73Consequently, the Board of Appeal was fully entitled to find, without infringing Article8(1)(b) of Regulation 2017/1001, in paragraph67 of the contested decision, in the context of a global assessment of the likelihood of confusion, that, even taking into account a higher level of attention on the part of the relevant public, there was, in the present case, a likelihood of confusion between the marks at issue. It follows that the Board of Appeal’s assessment of the factors that are relevant with regard to the global assessment of the likelihood of confusion is not marred by error, with the result that the fourth part of the single plea must also be rejected.

74Moreover, it must be pointed out, as observed by the Opposition Division and the Board of Appeal of EUIPO, that there is no need to examine the applicant’s arguments concerning the other earlier mark, namely the earlier EU figurative mark LUMI Endless possibilities. Since a likelihood of confusion with regard to only one earlier mark is sufficient to uphold the opposition on the basis of Article8(1)(b) of Regulation 2017/1001 and the Court has held, in paragraph73 above, that the Board of Appeal was fully entitled to find, without infringing that provision, that there was such a likelihood of confusion between the mark applied for and the earlier mark at issue, namely the earlier EU word mark LUMI, those arguments must be held to be ineffective, inasmuch as they cannot lead to the annulment of the contested decision in that regard.

75In conclusion, in view of all of the foregoing considerations, the single plea in law put forward by the applicant must be rejected as unfounded and the action must therefore be dismissed in its entirety.