Judgment of the General Court (Eighth Chamber) 2 September 2026

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

2 September 2026 ( * )

( EU trade mark – Opposition proceedings – Application for the EU figurative trade mark PHI GROUP – International registration of the earlier figurative mark PHIACADEMY – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )

In Case T‑521/24,

RGCC Holdings AG, established in Zug (Switzerland), represented by P. Campolini and V. Van der Wangen, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by D. Stoyanova-Valchanova and V. Ruzek, acting as Agents,

defendant,

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

Phiacademy Doo Beograd, established in Belgrade (Serbia),

THE GENERAL COURT (Eighth Chamber),

composed, at the time of the deliberations, of D. Petrlík, acting as President, K. Kecsmár and S. Kingston (Rapporteur), Judges,

Registrar: J. Čuboň, Administrator,

having regard to the written part of the procedure,

further to the hearing on 9 July 2025,

having regard to the decision to reopen the oral part of the procedure of 5 November 2025,

having regard to the measure of organisation of procedure of 6 November 2025 and the replies of the parties lodged at the Registry of the General Court on 24 November 2025,

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, RGCC Holdings AG, seeks the annulment and alteration of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 July 2024 (Case R 137/2024-1) (‘the contested decision’).

Background to the dispute

2 On 24 June 2022, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:

3 The mark applied for covered goods and services in, inter alia, Classes 9 and 41 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding, for each of those classes, to the following description:

– Class 9: ‘Software’;

– Class 41: ‘Education’.

4 On 22 October 2022, Phiacademy Doo Beograd filed a notice of opposition to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above.

5 The opposition was based on several earlier rights, including international registration No 1 511 559 enjoying protection, inter alia, in Ireland and corresponding to the figurative trade mark reproduced below:

6 The international registration of that trade mark had been filed on 8 July 2019 for, inter alia, services in Class 41 corresponding to the following description: ‘providing electronic publications, non-downloadable, on a global computer network; distance learning courses’.

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 By decision of 24 November 2023, the Opposition Division upheld the opposition on the basis of Article 8(1)(b) of Regulation 2017/1001 and rejected the registration of the mark applied for in respect of the goods and services in Classes 9 and 41, referred to in paragraph 3 above.

9 On 16 January 2024, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision in so far as that decision had upheld the opposition.

10 By the contested decision, the Board of Appeal dismissed the appeal in its entirety on the ground that there existed a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001 for at least a part of the relevant public.

Forms of order sought

11 The applicant claims that the Court should:

– annul the contested decision;

– find that the opposition fails in its entirety or, alternatively, refer the case to EUIPO in order for it to draw all the necessary consequences from the Court’s decision;

– order Phiacademy Doo Beograd to bear the costs of the appeal proceedings before the Board of Appeal;

– order EUIPO and, if necessary, Phiacademy Doo Beograd, to pay the costs of the present proceedings.

12 EUIPO contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs incurred by EUIPO in case an oral hearing is convened.

Law

13 In support of its action, the applicant relies on a single plea in law, divided, in essence, into four separate parts, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. In particular, the applicant criticises the Board of Appeal for having made several errors of assessment, first, in the comparison of the goods and services in question; second, in the definition of the relevant public; third, in the comparison of the marks at issue; and fourth, in the global assessment of the likelihood of confusion on the part of the relevant public.

14 EUIPO disputes the applicant’s arguments.

15 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 is not to be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.

16 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. 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 33 and the case-law cited).

17 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).

18 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 consumer of the goods or services 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).

19 The present action must be examined in the light of those principles.

20 At the outset, it must be noted that the Board of Appeal stated that the relevant territory for the assessment of the likelihood of confusion was Ireland. The applicant does not dispute that assessment.

The reasoning in the contested decision

21 In response to a question asked by the Court in the context of the measure of organisation of procedure by which the parties were asked to take a position on the adequacy of the reasons provided, in paragraphs 55 and 56 of the contested decision, in support of the finding, in paragraph 57 of that decision, that the compared goods and service were similar to a low degree, the applicant has claimed that the contested decision was based on a comparison between, on the one hand, a specific type of software, namely ‘desktop publishing software’, and, on the other hand, ‘providing electronic publications, non-downloadable, on a global computer network’. According to the applicant, if the Board of Appeal had had another type of software in mind when reaching its conclusion, it should have explained that in the contested decision. In that event, according to the applicant, the Board of Appeal failed to comply with its obligation to state reasons.

22 EUIPO submits that the contested decision is reasoned to the requisite legal standard.

23 Under the first sentence of Article 94(1) of Regulation 2017/1001, decisions of EUIPO must state the reasons on which they are based. That obligation has the same scope as that which derives from the second paragraph of Article 296 TFEU, which requires that the statement of reasons must disclose in a clear and unequivocal manner the reasoning followed by the institution which adopted the measure in question, without it being necessary for that reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets those requirements must, nonetheless, be assessed with regard not only to its wording, but also to its context and to all the legal rules governing the matter in question. That obligation, which also stems from Article 41(2) of the Charter of Fundamental Rights of the European Union, has the purpose of enabling interested parties to know the purported justification for the measure taken so as to be able to defend their rights and of enabling the EU judicature to exercise its jurisdiction to review the legality of the decision in question (see, to that effect, judgment of 28 June 2018, EUIPO v Puma , C‑564/16 P, EU:C:2018:509, paragraphs 64 and 65 and the case-law cited).

24 In the present case, the Board of Appeal found, in paragraph 55 of the contested decision, that ‘software’ and ‘electronic publishing’, including ‘online publishing services’, were similar to a low degree, due to their overlapping purpose and the fact that they had the same public. Next, in paragraph 56 of that decision, the Board of Appeal stated that they could essentially satisfy the same needs and that they therefore shared the same purpose, and could coincide in their end users, distribution channels and origin, for instance, publishing houses specialised in electronic forms of publishing.

25 First of all, in so far as the applicant maintains, in essence, that the Board of Appeal should have specified in the contested decision that it had taken into account a subcategory of software which is broader than the subcategory ‘desktop publishing software’, namely the subcategory ‘publishing software’, it must be held that the applicant’s line of argument is ineffective.

26 The applicant argues that, in the event that the comparison is carried out in relation to ‘desktop publishing software’, the relevant public will be comprised exclusively of professionals with a high level of attention and that such a finding, taken together with the other relevant circumstances of the case, would rule out any likelihood of confusion.

27 Even assuming that the Board of Appeal should have specified in the contested decision that it had taken into account either the subcategory ‘desktop publishing software’, which is aimed at a professional public with a high level of attention, or the broader subcategory ‘publishing software’, which is aimed at both professionals and the general public displaying a normal level of attention, any potential ambiguity in that regard has no effect on the outcome of the dispute, as the Board of Appeal found, in paragraph 64 of the contested decision, that there existed a likelihood of confusion even supposing that the relevant public had a higher level of attention. According to the case-law, if, in the particular circumstances of the case, an error could not have had a decisive effect on the outcome, the argument based on such an error is ineffective and thus cannot suffice to justify annulling the decision that is contested (see judgment of 7 December 2022, Puma v EUIPO – Vaillant (Puma) , T‑623/21, not published, EU:T:2022:776, paragraph 42 and the case-law cited).

28 In any event, it should be observed that, even though paragraphs 55 and 56 of the contested decision refer to ‘software’, covered by the mark applied for, without further specification, it is apparent from those paragraphs, read in their context, that, in order to arrive at the conclusion that there was a low degree of similarity with the service compared, the Board of Appeal took into account the subcategory ‘publishing software’, which includes the narrower subcategory ‘desktop publishing software’.

29 Paragraph 55 of the contested decision does indeed refer to the decision of the Second Board of Appeal in Case R 190/2018-2, which points, in paragraphs 30 and 31 thereof, on which the finding in paragraph 32 thereof is based, to the subcategory ‘desktop publishing software’, taking the view that it was likely that there was some similarity between that type of software and ‘electronic publishing’. Accordingly, as the applicant understood it, the comparison carried out by the Board of Appeal in the contested decision included at least the subcategory ‘desktop publishing software’.

30 However, there is nothing in the contested decision to indicate that the comparison carried out was restricted to that subcategory. In paragraph 55, the contested decision merely refers to paragraph 32 of the decision in Case R 190/2018-2, where the Second Board of Appeal found that the broad category of ‘computer software’ was similar to a low degree to ‘electronic publishing’.

31 Furthermore, in paragraph 56 of the contested decision, in which the Board of Appeal carried out its own analysis of the similarities between ‘software’ in Class 9 and ‘providing electronic publications, non-downloadable, on a global computer network’ in Class 41, reference is made to ‘publishing houses specialised in electronic forms of publishing’, which evokes the subcategory ‘publishing software’.

32 Therefore, it is sufficiently clear from paragraphs 55 and 56 of the contested decision that the comparison carried out by the Board of Appeal was not limited only to the subcategory ‘desktop publishing software’ but covered the broader subcategory ‘publishing software’.

33 Consequently, the applicant’s line of argument alleging a defective statement of reasons is ineffective and, in any event, unfounded.

The second part, regarding the relevant public

34 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).

35 The relevant public for the assessment of the likelihood of confusion is composed of users likely to use both the goods or services covered by the earlier mark and those covered by the mark applied for. Thus, as a general rule, where goods or services covered by one of the marks at issue are included in the broader designation covered by the other mark, the relevant public is defined by reference to the more specific wording (see judgment of 24 May 2011, ancotel v OHIM – Acotel (ancotel.) , T‑408/09, not published, EU:T:2011:241, paragraphs 38 and 39 and the case-law cited).

36 In that regard, account must be taken of the fact that a restricted and specialist public is likely to have specific knowledge of the goods or services covered by the marks at issue and/or to display, in that regard, a higher level of attentiveness than the general public. Those factors may play a decisive role in determining whether or not there is a likelihood of confusion between those marks (see judgment of 24 May 2011, ancotel ., T‑408/09, not published, EU:T:2011:241, paragraph 30 and the case-law cited).

37 In the present case, the applicant does not dispute the Board of Appeal’s assessment that the relevant public displayed an above-average level of attention as concerns the identical services of ‘education’, covered by the mark applied for, and ‘distance learning courses’, covered by the earlier mark, both in Class 41.

38 By contrast, by the second part of the single plea in law, the applicant challenges the Board of Appeal’s assessment regarding the definition of the relevant public for ‘software’ in Class 9, covered by the mark applied for. According to the applicant, since the Board of Appeal carried out its assessment of the likelihood of confusion on the basis of a specific type of software, namely ‘desktop publishing software’, and not on the basis of the broader category ‘software’, the relevant public common to both marks in the present case, namely the public liable to use the goods and the service in question, is composed of professionals such as companies looking to improve their online appearance or online publishing houses. Therefore, according to the applicant, the level of attention of the relevant public does not vary from average to high depending on the specific circumstances of the case, as the Board of Appeal found, but always remains high.

39 EUIPO disputes the applicant’s line of argument.

40 In that regard, according to the case-law, where the relevant public consists of two categories of consumer, each with a different level of attention, the public with the lowest level of attention must be taken into consideration (see judgment of 20 May 2014, Argo Group International Holdings v OHIM – Arisa Assurances (ARIS) , T‑247/12, EU:T:2014:258, paragraph 29 and the case-law cited).

41 In the present case, by relying, in essence, on that case-law, the Board of Appeal noted, in paragraph 28 of the contested decision, that even though some types of software could be highly specialised and even aimed only at professionals, given the broad wording of the goods at issue, namely software as such, without further specification as to what type of software, it was reasonable to conclude that ‘software’ in Class 9 targeted the general public displaying a normal level of attention.

42 That conclusion is not called into question by the applicant’s line of argument in the second part of the single plea in law, as that line of argument is founded in essence on the premiss that the assessment of the comparison of the goods and services by the Board of Appeal was based on a comparison between a specific type of software, namely desktop publishing software, on the one hand, and the service in question, on the other. As has been stated in paragraphs 28 to 32 above, the Board of Appeal’s assessment regarding the similarity of the goods and the service in question was not limited to ‘desktop publishing software’ but included also the broader subcategory ‘publishing software’, which is aimed at both professionals and the general public displaying a normal level of attention.

43 The applicant has not provided the Court with any specific evidence to challenge the Board of Appeal’s finding that, in essence, the subcategory ‘publishing software’ is aimed also at the general public displaying a normal level of attention. In particular, the applicant has not disputed in any detailed manner that, as submitted by EUIPO, it cannot be ruled out that that software is used by the general public for self-publishing.

44 In any event, as has been stated in paragraph 27 above, the Board of Appeal found, in paragraph 64 of the contested decision, that there was a likelihood of confusion even supposing that the relevant public had a higher level of attention.

45 The second part of the single plea in law must therefore be rejected as unfounded and, in any event, ineffective.

The first part, regarding the comparison of the goods and services

46 According to settled case-law, in assessing the similarity of the goods or services in question, all the relevant factors relating to those goods or services 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. 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).

47 In the present case, the applicant does not dispute the Board of Appeal’s finding that ‘education’ and ‘distance learning courses’, both in Class 41, are identical.

48 By contrast, by the first part of its single plea in law, the applicant submits that the Board of Appeal erred in law by finding, in paragraph 57 of the contested decision, that ‘software’ in Class 9, covered by the mark applied for, was similar to a low degree to ‘providing electronic publications, non-downloadable, on a global computer network’ in Class 41, covered by the earlier mark.

49 At the outset, it should be pointed out that the applicant’s line of argument in the context of the first part is founded, in essence, on the premiss, already rejected in paragraphs 28 to 32 above, that the Board of Appeal’s assessment and the resulting findings were based on a comparison between a specific type of software, namely desktop publishing software, on the one hand, and the service in question, on the other.

50 That being said, the applicant submits, in the first place, that the Board of Appeal’s assessment that the goods and the service referred to above can share the same purpose and can coincide in their end users is wrong.

51 First, as concerns the purpose of the goods and of the service in question, as submitted by EUIPO, it should be noted that publishing software, including desktop publishing software, is not only used in the design of posters and page layouts, as maintained by the applicant, but includes, more generally, software intended for the design and publishing of content in electronic format. Thus, the purpose of ‘software’ and that of ‘providing electronic publications, non-downloadable, on a global computer network’ coincide in part.

52 In addition, contrary to what is argued by the applicant, such a coincidence in the purpose of the goods and of the service in question is not of limited importance. The Court has previously had the opportunity to observe that software consists of programs which control the operation of a machine, especially a computer, and enable it to perform a desired sequence of operations, with the result that a program must be understood in relation to the operations which it carries out and therefore in relation to its function. It follows that the consumer will be guided primarily by the specific function of the product rather than by its nature. Thus, in order effectively to assess the degree of similarity between ‘software’ and ‘providing electronic publications, non-downloadable, on a global computer network’, the function criterion, and therefore the criterion of intended purpose, assumes overriding importance among the relevant factors to be taken into account (see order of 4 November 2024, Finastra International v EUIPO – Fenestrae (FINASTRA) , T‑346/23, not published, paragraphs 32 and 33 and the case-law cited).

53 Second, as concerns the comparison of the relevant sections of the public in question, the applicant claims that the targeted sections of the public of the goods and the service in question differ, as desktop publishing software is generally aimed at the professional online publishing sector, which offers a service ‘providing electronic publications, non-downloadable, on a global computer network’. Thus, that software is at best indirectly connected to such a service. According to the applicant, it is likely that the provider of that service will be the one making use of the software concerned. The service in question, on the other hand, targets end users reading such publications or companies looking to enhance their online appearance.

54 In that regard, as has been found in paragraph 43 above, the applicant has not provided any specific evidence to challenge the Board of Appeal’s finding that, in essence, the subcategory ‘publishing software’ is aimed also at the general public displaying a normal level of attention. Therefore, it cannot be ruled out that publishing software and the service ‘providing electronic publications, non-downloadable, on a global computer network’ can target the general public.

55 In the second place, the applicant submits that although software is needed for the use of the service ‘providing electronic publications, non-downloadable, on a global computer network’, since that service is provided on a global computer network and since computers use software, their complementary nature is not decisive to the conclusion that they are similar.

56 According to the case-law, as regards the complementary nature of the goods and services, which may in itself justify the conclusion that they 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 12 February 2025, Alberts v EUIPO – Techtex (Cardboard boxes [packaging]) , T‑245/24, not published, EU:T:2025:145, paragraph 56 and the case-law cited).

57 However, it should be emphasised that, in today’s high-tech society, almost no electronic or digital equipment functions without the use of computers in one form or another, with the result that there is a multitude of software or programs with radically different functions. To acknowledge similarity in all cases in which the goods and services are also provided electronically and where the earlier word mark covers computer programs or software would clearly exceed the scope of the protection granted by the EU legislature to the proprietor of a trade mark. Such a position would lead to a situation in which the registration of an EU trade mark designating software or computer programs would in practice exclude subsequent registration of any other right designating the goods and services provided electronically (see judgment of 30 June 2021, Zoom v EUIPO – Facetec (ZOOM) , T‑204/20, not published, EU:T:2021:391, paragraph 52 and the case-law cited).

58 Thus, it is true that, in the light of that case-law, the mere finding that, on the one hand, ‘software’, and, on the other, services provided electronically which make use of software, such as the service in question, are complementary, is not sufficient to find that they are similar.

59 However, in the present case, it should be observed that the Board of Appeal did not base its finding of similarity between ‘software’ and ‘providing electronic publications, non-downloadable, on a global computer network’ on a mere reference to the complementary nature of software and any type of electronic or digital process or service exploiting that software, but also took into account other relevant factors, in particular the fact that software and the service in question could essentially meet the same needs and, consequently, had the same intended purpose, a factor which is of overriding importance in the present case (see paragraph 52 above), and could coincide with regard to their end users and origin.

60 In the third place, the applicant maintains that the origin and distribution channels of ‘software’ and ‘providing electronic publications, non-downloadable, on a global computer network’ differ.

61 First, the applicant submits that it is unlikely that consumers may think that ‘software’ and ‘providing electronic publications, non-downloadable, on a global computer network’ are of the same origin, as they are usually provided by different specialist undertakings. In particular, the applicant asserts that electronic publications are generally offered by companies creating content, like online publishing houses, which normally are not engaged in the development of highly specialised software such as desktop publishing software.

62 However, the applicant has not provided the Court with any specific evidence to substantiate such a claim. In those circumstances, the applicant’s argument must be rejected.

63 Furthermore, in support of its line of argument concerning the origin of the goods and of the service in question, the applicant relies on two decisions of EUIPO’s Boards of Appeal.

64 In that regard, it must be recalled that decisions concerning registration of a sign as an EU trade mark which the Boards of Appeal of EUIPO take under Regulation 2017/1001 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, as EUIPO correctly submits, the legality of those decisions must be assessed solely on the basis of that regulation as interpreted by the EU judicature and not on the basis of a previous decision-making practice (see, to that effect, judgment of 26 April 2007, Alcon v OHIM , C‑412/05 P, EU:C:2007:252, paragraph 65).

65 It is true that the Court of Justice held that, in the light of the principles of equal treatment and sound administration, EUIPO had to, when examining an application for registration of an EU trade mark, take into account the decisions already taken in respect of similar applications and consider with especial care whether it had to decide in the same way or not. However, the Court of Justice added that the way in which the principles of equal treatment and sound administration were applied had to be consistent with respect for legality. Moreover, for reasons of legal certainty and, indeed, of sound administration, the examination of any trade mark application must be stringent and full, in order to prevent trade marks from being improperly registered. That examination must be undertaken in each individual case. The registration of a sign as an EU trade mark depends on specific criteria, which are applicable in the factual circumstances of the particular case and the purpose of which is to ascertain whether the sign in question is caught by a ground for refusal (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM , C‑51/10 P, EU:C:2011:139, paragraphs 74, 75 and 77).

66 In the present case, it should be observed that the decisions relied on by the applicant do not contradict the Board of Appeal’s assessment in the contested decision and, furthermore, concerned different goods and services. As regards the decision of the Fourth Board of Appeal of 23 July 2014 (Case R 818/2013-4), the Board of Appeal found therein that the goods and services covered by that decision had a different intended purpose and a different targeted public, which does not apply to the present case. Next, the decision of the Second Board of Appeal of 4 September 2018 (Case R 190/2018-2) does not contradict the contested decision in so far as both decisions find that there is a low degree of similarity between software and electronic publishing services.

67 Second, as concerns distribution channels, suffice it to observe that, contrary to what is argued by the applicant, the Board of Appeal did not attribute decisive importance to its assessment according to which ‘software’ and ‘providing electronic publications, non-downloadable, on a global computer network’ could coincide in their distribution channels. Accordingly, the applicant’s argument that the distribution channels of the goods and of the service in question are different cannot call into question the finding that there is a low degree of similarity between those goods and the service in question, given that it has already been established that they coincide, in particular as concerns purpose, end users and origin.

68 In the fourth place, the applicant argues that goods and services are generally dissimilar by their nature since goods are tangible whereas services are intangible and target other consumer needs, as follows from the case-law, and in particular from paragraph 39 of the judgment of 15 February 2017, Morgese and Others v EUIPO – All Star (2 STAR) (T‑568/15, not published, EU:T:2017:78). In the present case, according to the applicant, the sale of the product ‘software’ requires a transfer of title and that product can generally be downloaded, whilst the service ‘providing electronic publications, non-downloadable, on a global computer network’ entails the provision of intangible activities and cannot be downloaded.

69 In that regard, admittedly, the fact that goods can be downloaded whereas services cannot be downloaded could indicate that those services and those goods are, to that extent, dissimilar in nature.

70 However, it should be pointed out, as was correctly done by the Board of Appeal, that software and the service in question may essentially meet the same needs and, consequently, have the same intended purpose, such a factor being of overriding importance in the present case, and may coincide in their end users and their origin (see paragraphs 52 and 59 above). In those circumstances, the mere difference in nature between the goods and the service in question alone is not sufficient to rule out, from the outset, any similarity between them (see judgment of 20 October 2021, Intis v EUIPO – Televes (TELEVEND) , T‑112/20, not published, EU:T:2021:710, paragraph 45 and the case-law cited; see also, by analogy, judgment of 15 February 2017, 2 STAR , T‑568/15, not published, EU:T:2017:78, paragraphs 36 to 39 and the case-law cited).

71 In the fifth place, the applicant submits that the goods and the service in question are not in competition because software cannot be replaced by providing electronic publications, non-downloadable, on a global computer network and vice versa, inter alia because the latter cannot be downloaded to operate computers and execute specific commands. According to the applicant, the relevant public of ‘desktop publishing software’ will also use the software with the purpose of creating specific publications itself, whilst the relevant public of ‘providing electronic publications, non-downloadable, on a global computer network’ will not use that service to create such publications itself.

72 In that regard, it must be recalled that, in order for the goods to be regarded as in competition, there must be an element of interchangeability between them (see judgment of 4 February 2013, Hartmann v OHIM – Protecsom (DIGNITUDE) , T‑504/11, not published, EU:T:2013:57, paragraph 42 and the case-law cited).

73 However, in the present case, the applicant has not provided any specific evidence to rule out that such a relationship of interchangeability could exist, in so far as, as has been, in essence, found in paragraph 43 above and in paragraph 56 of the contested decision, the same customers could either buy ‘publishing software’ for self-publishing or make use of the service in question essentially to satisfy the same needs.

74 In the last place, the applicant presents several examples originating from EUIPO’s Similarity tool to claim that, according to that tool, software is dissimilar to animated cartoons, financial services and printed publications. According to the applicant, by analogy, the ground according to which software could, among other things, be specifically intended to provide or generate electronic publications and thus would have the same purpose and target the same public is not sufficient to establish similarity, even to a low degree.

75 First of all, the Court is not bound by the examples originating from that tool in so far as, as observed by EUIPO, it serves only to help and support examiners and EUIPO users in assessing the similarity of goods and services.

76 Moreover, it is true that the mere finding that a specific type of software could be used to carry out a service is not sufficient to establish similarity. However, in the present case, as has been observed in paragraph 59 above, the Board of Appeal’s analysis is not limited to the mere relationship of complementarity between software and a service using a type of software, but refers to other elements of similarity, in particular with regard to intended purpose, end users and origin of the goods and the service in question.

77 Thus, the relevance of the examples referred to by the applicant originating from EUIPO’s Similarity tool must be ruled out.

78 In the light of all of the above, the Board of Appeal was correct in finding, in paragraph 57 of the contested decision, that ‘software’ in Class 9, covered by the mark applied for, was similar to a low degree to ‘providing electronic publications, non-downloadable, on a global computer network’ in Class 41, covered by the earlier mark.

79 Accordingly, the first part of the single plea in law must be rejected.

The third part, regarding the comparison of the signs

80 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).

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

82 The greater or lesser degree of distinctiveness of the elements common to the mark applied for and an earlier mark is one of the relevant factors in assessing the similarity of those signs. The descriptive, non-distinctive or weakly distinctive elements of a composite trade mark generally have less weight in the analysis of the similarity between the signs than the elements of greater distinctiveness, which are also more able to dominate the overall impression created by the mark. The weakly distinctive character of an element which is common to two signs, just like the descriptive nature of such an element, significantly reduces the relative weight of that element in the comparison of those signs, including the visual and phonetic comparisons, even though its presence must be taken into account (see judgment of 7 May 2025, Carl Freudenberg v EUIPO – Cadeinor – Mobiliário de escritório integrado (SOUNDLESS) , T‑398/24, not published, EU:T:2025:443, paragraph 34 and the case-law cited).

The distinctive and dominant elements of the marks at issue

83 As concerns the word elements of the marks at issue, the Board of Appeal found that the only distinctive element of the marks at issue, irrespective of whether understood as such or not, was the element ‘phi’ common to the signs. According to the Board of Appeal, the Irish relevant consumer was likely to break down the term ‘phiacademy’ of the earlier mark into ‘phi’ and ‘academy’. Therefore, the Board of Appeal took the view that the element ‘phi’ common to the marks at issue, appearing at the beginning of those marks, would be perceived by a part of the relevant public as the letter ‘φ’ of the Greek alphabet, not alluding to the goods and services in question or their characteristics in any way, and that it was therefore distinctive. As a part of the public perceived that element as meaningless, its distinctiveness is normal. As concerns the elements ‘academy’ and ‘group’, the Board of Appeal took the view that those elements had to be considered to be devoid of distinctive character as they merely described that the goods and services in question were offered through a group of companies or in an academy.

84 As regards the figurative elements of the marks at issue, the Board of Appeal found that they were not negligible in terms of their size and position in each of the marks at issue, that they occupied a conspicuous position in both marks and that they had the purpose and result of enhancing the importance of the word elements of those marks. According to the Board of Appeal, in the mark applied for, the initial figurative element was mainly of a decorative nature, while being visually eye-catching given its bigger size in comparison to the verbal elements of that mark. Lastly, the Board of Appeal found that in the rather unlikely scenario that the figurative element of the earlier mark would be perceived as a representation of two pencils, that element would, at best, be weakly distinctive, since it was conceptually related to the term ‘academy’, which was non-distinctive with respect to the services in question. According to the Board of Appeal, moreover, the earlier mark had no elements which could be considered to be dominant, in the sense that all other elements of the single word sign were negligible within the overall impression created by it.

85 The applicant submits, in the first place, that the contested decision is contrary to the case-law of the Court of Justice, in particular the case-law stemming from the judgment of 4 March 2020, EUIPO v Equivalenza Manufactory (C‑328/18 P, EU:C:2020:156), in so far as the Board of Appeal assessed the similarity of the signs by wrongly taking account of the goods and services covered by the marks at issue, even though it should have based its analysis only on the intrinsic qualities of those marks. According to the applicant, taking account of such considerations at the stage of the comparison of the signs led the Board of Appeal to come to the wrong conclusion as to the alleged visual, phonetic and conceptual similarity between the signs. Therefore, as concerns the word elements of the marks at issue, the Board of Appeal gave too little weight to the terms ‘group’ and ‘academy’ and to the figurative element of the earlier mark, as it considered those elements to be descriptive of the goods and services covered by the marks at issue. By contrast, the Board of Appeal gave too much weight to the element ‘phi’, by considering it to be a distinctive element common to those marks. Lastly, the applicant maintains that the contested decision is also contrary to the judgment of 11 June 2020, China Construction Bank v EUIPO (C‑115/19 P, EU:C:2020:469), in which the Court of Justice clarified that considerations as to the distinctive character of the components of a trade mark are relevant only in the context of the global assessment of the likelihood of confusion.

86 In that regard, first of all, it should be noted that the applicant’s line of argument derives from an incorrect reading of the judgment of 4 March 2020, EUIPO v Equivalenza Manufactory (C‑328/18 P, EU:C:2020:156), and in particular of paragraphs 68 to 73 thereof, to which the applicant refers. It is true that, in paragraph 70 of that judgment, the Court of Justice clarified that although marketing circumstances are a relevant factor in the application of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), they are to be taken into account at the stage of the global assessment of the likelihood of confusion and not at that of the assessment of the similarity of the signs at issue.

87 However, contrary to what is maintained by the applicant, it cannot be inferred from the judgment of 4 March 2020, EUIPO v Equivalenza Manufactory (C‑328/18 P, EU:C:2020:156), that the Board of Appeal, at the stage of the assessment of the similarity of the signs at issue, must disregard the goods and services in question. As submitted by EUIPO, for the purpose of assessing the distinctive character of an element making up a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the mark 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 mark has been registered (see judgment of 23 July 2025, Impossible Foods v EUIPO – Impossible Foods (IMPOSSIBLE BAKERS) , T‑67/24, not published, EU:T:2025:755, paragraph 33 and the case-law cited).

88 Furthermore, the applicant cannot maintain that the contested decision is contrary to paragraph 58 of the judgment of 11 June 2020, China Construction Bank v EUIPO (C‑115/19 P, EU:C:2020:469). It follows from that paragraph that the high degree of distinctive character of the earlier trade mark by reason of its reputation does not involve a comparison between a number of signs, but concerns only one sign, namely the sign which the opponent has registered as a trade mark. Therefore, the case-law cited by the applicant concerns the distinctiveness of the earlier mark taken as a whole – which is not at issue in the present case – and does not concern the distinctiveness of the components of the signs at issue (see, to that effect, judgment of 11 June 2020, China Construction Bank v EUIPO , C‑115/19 P, EU:C:2020:469, paragraphs 58 and 61).

89 In the second place, as concerns the applicant’s argument that EUIPO’s Opposition Division had, in two earlier decisions, found that the word element ‘academy’ was distinctive, it is sufficient to recall the case-law cited in paragraph 64 above, according to which the legality of those decisions must be assessed solely on the basis of Regulation 2017/1001 as interpreted by the EU judicature and not on the basis of a previous decision-making practice. Moreover, it must be observed that the Boards of Appeal may not be bound by the decisions of lower-ranking adjudicating bodies of EUIPO (judgments of 22 May 2014, NIIT Insurance Technologies v OHIM (EXACT) , T‑228/13, not published, EU:T:2014:272, paragraph 48, and of 13 December 2016, Apax Partners v EUIPO – Apax Partners Midmarket (APAX) , T‑58/16, not published, EU:T:2016:724, paragraph 38).

90 In any event, even assuming that the Opposition Division in those two cases had found that the word element ‘academy’ was distinctive, the fact remains that that assessment was made in relation to different goods and services from those of the present case.

91 Furthermore, as concerns the term ‘academy’, it should be observed that the Court has already held that the term ‘school’ may be considered to be descriptive of educational services in so far as it will indicate to the relevant public that those services are provided by an anglophone institution (judgment of 21 June 2023, International British Education XXI v EUIPO – Saint George’s School (IBE ST. GEORGE’S) , T‑438/22, not published, EU:T:2023:349, paragraph 47), and that the term ‘university’ may be considered to be descriptive of educational services in so far as that term was associated with an institution offering such services (judgment of 28 March 2017, Regent University v EUIPO – Regent’s College (REGENT UNIVERSITY) , T‑538/15, not published, EU:T:2017:226, paragraph 55). Those considerations can be applied, by analogy, to the term ‘academy’ designating the service ‘providing electronic publications, non-downloadable, on a global computer network’, as such a service also covers the provision of academic electronic publications.

92 As concerns, further, the term ‘group’, the Court has already found that the term ‘group’ had a weak inherent distinctiveness as that term generally referred to a corporate conglomerate and was therefore normally perceived as a descriptive addition (see judgment of 7 June 2023, Sanity Group v EUIPO – AC Marca Brands (Sanity Group) , T‑541/22, not published, EU:T:2023:310, paragraph 37 and the case-law cited).

93 It follows that the Board of Appeal cannot be criticised for having considered that the elements ‘academy’ and ‘group’ were devoid of any distinctiveness, in so far as those elements merely describe that the goods and services in question were offered through a group of companies or in an academy.

94 In the third place, as concerns the figurative elements of the marks at issue, the applicant submits that the contested decision is contradictory in so far as the Board of Appeal found that the word elements ‘phi’ were the only distinctive elements of the marks at issue, even though it also found that the figurative elements of those marks were not negligible and, in particular, with regard to the mark applied for, that the figurative element was the dominant element. In addition, the applicant agrees with that latter finding of the Board of Appeal, stating that the figurative element of the mark applied for, which is fanciful and visually eye-catching, is the dominant element of that mark due to its size, which is larger than that of the word elements, and its positioning at the beginning of the mark. The same is true, according to the applicant, of the figurative element of the earlier mark, which, due to its size and central positioning within the mark, is also dominant.

95 In that regard, it should be noted, as has been observed by the Board of Appeal in the contested decision, that, according to settled case-law, where a trade mark is composed of verbal and figurative elements, the former should, in principle, be 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 element of the trade mark (judgment of 14 July 2005, Wassen International v OHIM – Stroschein Gesundkost (SELENIUM-ACE) , T‑312/03, EU:T:2005:289, paragraph 37).

96 Admittedly, it does not follow automatically that it is the word element which must always be considered to be dominant. In the case of a composite mark, the figurative element may, in particular on account of its shape, size, colour or position in the sign, rank equally with the word element (see, to that effect, judgment of 23 November 2010, Codorniu Napa v OHIM – Bodegas Ontañon (ARTESA NAPA VALLEY) , T‑35/08, EU:T:2010:476, paragraphs 37 and 39 and the case-law cited).

97 However, in the present case, the applicant has not provided any arguments which could call into question the Board of Appeal’s assessment according to which, even though the figurative elements were not negligible in terms of their size and position and occupied conspicuous positions in both marks, they had the purpose and result of enhancing the importance of the word elements. Nor does the applicant call into question the Board of Appeal’s assessment according to which, in the situation argued by the applicant where the figurative element of the earlier mark would be perceived as a representation of two pencils, that element would, at best, be weakly distinctive, since it would be conceptually related to the term ‘academy’, with the result that that element would be non-distinctive with respect to the services in question.

98 Moreover, contrary to what is submitted by the applicant, the Board of Appeal’s assessment according to which the word elements ‘phi’ were the only distinctive elements of the marks at issue is not vitiated by a contradiction, as the Board of Appeal did not find that the figurative elements of those marks were distinctive.

99 Accordingly, it must be held that the applicant has failed to establish that the Board of Appeal erred in its assessment of the distinctive and dominant elements of the signs at issue.

The visual comparison

100 The Board of Appeal found that the marks at issue were visually similar to an average degree considering, in particular, that the distinctive beginnings of the word elements of the marks coincided.

101 The applicant disputes that assessment and states that the marks at issue are visually dissimilar or, at most, visually similar to a very low degree. It submits that the marks differ in their figurative elements, which have a dominant position in each of the marks and are distinctive. According to the applicant, the figurative element of the mark applied for is found at the beginning of that mark, while the figurative element of the earlier mark is on top and takes a central position. Since the relevant public pays more attention to the beginning or upper part of a sign and the Irish consumer tends to read from top to bottom and from left to right, the figurative elements are clearly visually eye-catching in the marks at issue.

102 As concerns the word elements, the applicant submits that, first, the marks at issue use different fonts and, second, the shared element of the marks, ‘phi’, is depicted in a different position in each of the marks. That element is also relatively small in the earlier mark compared to the figurative element. Moreover, the applicant argues that the marks differ in their other word elements, ‘group’ for the mark applied for, and ‘academy’ for the earlier mark, which, according to it, will not go unnoticed by the relevant consumer. According to the applicant, that is especially true for the word element ‘academy’, which starts even before the middle of the sign and is substantially larger than the single common word element ‘phi’ in the earlier mark, for which reason its visual impact cannot be disregarded. The impact of the word element ‘group’ can also not be disregarded, since it is clearly separated from the common word element ‘phi’ and, therefore, takes a clearly visible and independent position.

103 First of all, as concerns the reference made by the applicant to the case-law according to which the beginning of a mark is likely to attract more attention from the relevant public, it should be recalled, at the outset, that that consideration cannot apply in all cases and cannot, in any event, undermine the principle, reiterated by the Board of Appeal and cited in paragraph 81 above, according to which the examination of the similarity between the marks must take into account the overall impression conveyed by those marks, as the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details.

104 Next, in the present case, it should be recalled, first, that the marks at issue coincide in the distinctive word element ‘phi’, which appears at the beginning of the word elements ‘phi group’ and ‘phiacademy’, and that the other word elements, namely ‘group’ and ‘academy’, appear at the end and are devoid of distinctiveness, as has already been observed in paragraph 83 above. Second, as was found by the Board of Appeal, the shared word element ‘phi’ is the only distinctive element of the marks at issue.

105 In those circumstances, it must be held that the applicant’s arguments, in particular those concerning the font, the size and the different position of the elements making up the marks at issue, are, in the present case, of secondary importance in comparison to the overall visual impression conveyed by those marks, in so far as those marks coincide in their distinctive element ‘phi’.

106 Accordingly, it must be held that the applicant’s line of argument cannot invalidate the Board of Appeal’s finding that the marks at issue are visually similar to an average degree.

The phonetic comparison

107 The Board of Appeal found that the marks at issue were phonetically similar to a high degree in so far as they coincided in the pronunciation of the distinctive elements ‘phi’, whereas they differed in their additional terms, ‘academy’ and ‘group’, respectively, even though both of those terms were devoid of distinctive character.

108 The applicant disputes that finding. It submits that, due to the limited impact of the common word element ‘phi’, which is pronounced ‘fi’ and in a shorter manner than the other word elements, and due to the very different pronunciation of the other word elements of the marks at issue, as well as their intrinsic qualities, the relevant public will perceive the marks at issue as phonetically similar to a low degree.

109 In that regard, as stated by the Board of Appeal, the phonetic differences concern the descriptive elements of the marks at issue, namely the word elements ‘group’ and ‘academy’, whereas the common element ‘phi’ has a distinctive character. Therefore, in accordance with the case-law cited in paragraph 82 above, less weight should be given to the word elements ‘group’ and ‘academy’ in the assessment of the similarity between the signs.

110 Accordingly, while the applicant is right to state that the mark applied for will be pronounced in two syllables, whereas the earlier mark will be pronounced in five syllables, it should be noted that the difference in the syllable structure of the signs at issue does not have an impact such as to dispel the marked phonetic similarity between the marks at issue, which must be assessed on the basis of the overall impression conveyed by their full pronunciation (see, to that effect, judgment of 17 March 2004, El Corte Inglés v OHIM – González Cabello and Iberia Líneas Aéreas de España (MUNDICOR) , T‑183/02 and T‑184/02, EU:T:2004:79, paragraph 85).

111 Accordingly, it must be held that the applicant’s line of argument cannot invalidate the Board of Appeal’s finding that the marks at issue are phonetically similar to a high degree.

The conceptual comparison

112 The Board of Appeal found that there would be a high conceptual similarity in the event that the initial word element ‘phi’ shared by the marks at issue were to be perceived by the relevant public as the Greek letter represented by that term, given the lack of distinctiveness of the terms ‘academy’ and ‘group’. Were the element ‘phi’ not recognised in that sense, and given that the differences in the concepts conveyed by the terms ‘academy’ and ‘group’ were of secondary importance, if any, given their lack of distinctiveness, in each of the marks at issue, the Board of Appeal found that the marks would be conceptually dissimilar.

113 The applicant does not dispute that a part of the Irish relevant public will understand the initial word element ‘phi’, shared by the marks at issue, as the Greek letter represented by that term.

114 By contrast, the applicant disputes the Board of Appeal’s finding, claiming that the marks at issue are conceptually different.

115 In the first place, referring to a decision of the Grand Board of Appeal of 26 March 2021 (Case R 0551/208-G), the applicant submits that, as the Greek letter ‘phi’ does not convey any concept beyond the mere representation of a letter, the mere fact that that letter is identical in the marks at issue is not sufficient to establish conceptual identity, or even similarity.

116 In the present case, it should be noted that the Board of Appeal considered that there existed a likelihood of confusion, for at least a part of the relevant public, both in the event that there is a high degree of conceptual similarity for the part of the relevant public perceiving the element ‘phi’ as the Greek letter and in the event that there is no such similarity for the part of the relevant public not perceiving the element as that letter. Therefore, as contended by EUIPO, that argument is ineffective.

117 In the second place, even though it cannot be ruled out that the figurative element of the earlier mark will be understood by a part of the relevant public as an eyebrow shaping tool, whereas such an interpretation is not, as submitted by the applicant, present for the mark applied for, the fact remains, as noted by EUIPO, that a non-negligible part of the relevant public will not perceive it as such, as the connection between the figurative element and the eyebrow shaping tool is not evident. The applicant’s argument is thus ineffective, without it being necessary to rule on the admissibility of Annex A.16 to the application.

118 In the third place, according to the applicant, the elements ‘group’ and ‘academy’ will be understood by the relevant public as having different meanings, designating, respectively, as regards the first element, a number of people or things that are put together or considered as a unit, and as regards the second element, a school that teaches a particular subject or trains people for a particular job, or an organisation that supports art, literature, or science, which makes the conceptual dissimilarity between the marks at issue even clearer.

119 In that regard, while it is true that the word elements ‘academy’ and ‘group’ have different meanings, it should be noted that, as found by the Board of Appeal, those terms are of secondary importance in the conceptual comparison, in so far as they are considered to be devoid of distinctiveness, as has been observed in paragraph 83 above.

120 Therefore, the applicant’s line of argument concerning the conceptual comparison of the signs at issue must be rejected.

The fourth part, regarding the global assessment of the likelihood of confusion

121 According to the case-law, 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).

122 In its global assessment of the likelihood of confusion, the Board of Appeal recalled that the goods and services covered by the marks at issue were similar to a low degree with regard to ‘software’, covered by the mark applied for, and ‘providing electronic publications, non-downloadable, on a global computer network’, covered by the earlier mark, whereas they were identical with regard to, on the one hand, ‘education’, covered by the mark applied for, and, on the other, ‘distance learning courses’, covered by the earlier mark. The signs at issue were visually similar to an average degree, whereas phonetically and conceptually the marks were highly similar, in the event that the element ‘phi’ were understood as a letter of the Greek alphabet. Otherwise, the signs at issue would be conceptually dissimilar. Lastly, the Board of Appeal found that the distinctiveness of the earlier mark was normal, which is not disputed by the applicant.

123 In the light of these considerations and taking into account the notion of ‘imperfect recollection’ and the interdependence of the various factors, the Board of Appeal found that there existed a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001, at least for a non-negligible part of the Irish relevant public, even supposing that it had a higher level of attention, since that public would believe that the goods and services in question come from the same undertaking ‘PHI’ or, as the case may be, from economically linked undertakings.

124 By the first complaint in the fourth part of the single plea in law, the applicant argues that, in its global assessment of the likelihood of confusion, the Board of Appeal should have made a separate assessment of the distinctiveness of the elements of the marks at issue in relation to the goods and services in question, which the Board failed to make correctly when examining the similarity between the signs. According to the applicant, although the term ‘academy’ in the earlier mark can be considered to be potentially descriptive of the ‘distance learning courses’ in Class 41, covered by the earlier mark, which the Board of Appeal found to be identical to ‘education’ in Class 41, covered by the mark applied for, that term is not descriptive of the service ‘providing electronic publications, non-downloadable, on a global computer network’ in Class 41, covered by the earlier mark, which the Board of Appeal found to be similar to a low degree to ‘software’ in Class 9, covered by the mark applied for.

125 By that line of argument, the applicant challenges, in essence, the assessment of the Board of Appeal of the descriptiveness of the element ‘academy’ in the earlier mark with regard to ‘providing electronic publications, non-downloadable, on a global computer network’ in Class 41. That line of argument must be rejected for the reasons stated in paragraphs 89 to 92 above.

126 By its second complaint, the applicant argues, first, that there is no likelihood of confusion in relation to ‘software’ in Class 9 and the services covered by the earlier mark because those goods are dissimilar to such services. Second, the applicant submits, in the alternative, that the Board of Appeal erred in concluding that there existed a likelihood of confusion between the marks at issue for the goods and the service covered by the mark applied for, namely ‘software’ in Class 9 and ‘education’ in Class 41, referring, inter alia, to the visual and conceptual dissimilarity, the phonetic similarity to a merely low degree, the high level of attention of the relevant public, the normal distinctiveness of the earlier mark and the fact that the dominant and distinctive figurative elements will be the elements that first catch the consumer’s attention. According to the applicant, the absence of such a likelihood of confusion is even more apparent for ‘software’ in Class 9 because those goods are found to be similar only to a low degree to the services covered by the earlier trade mark.

127 That complaint must be rejected in so far as it does not raise a separate error as such with regard to the global assessment of the likelihood of confusion, and is thus based on the arguments already rejected in the context of the other parts. As found in paragraphs 47 to 120 above, the applicant has failed to call into question the findings of the Board of Appeal with regard to the similarity of the goods and the service in question and the comparison between the marks at issue.

128 Accordingly, it must be held that the Board of Appeal was right to find, following a global assessment, that there existed a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.

129 In the light of all the foregoing considerations, since the single plea in law raised by the applicant must be rejected, the action must be dismissed.

130 Therefore, the first head of claim must be rejected, as must, consequently, the second head of claim, without it being necessary to rule on the admissibility thereof.

Costs

131 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

132 Since a hearing has taken place and the applicant has been unsuccessful, the applicant must be ordered to bear its own costs and to pay those incurred by EUIPO, 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 RGCC Holdings AG to pay the costs.

Delivered in open court in Luxembourg on 2 September 2026.

* Language of the case: English.