Judgment of the General Court (Seventh Chamber) 23 September 2026

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

23 September 2026 ( * )

( EU trade mark – Opposition proceedings – International registration designating the European Union – Figurative mark Devatis – International registration of the earlier word mark NOVARTIS – Relative ground for refusal – No injury to reputation – Article 8(5) of Regulation (EU) 2017/1001 – No link between the signs )

In Case T‑231/25,

Deva Holding Anonim Şirketi, established in Istanbul (Türkiye), represented by C. Tenkhoff, T. Herzog and P. Grotkamp, lawyers,

applicant,

v

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

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Novartis AG, established in Basel (Switzerland), represented by A. Renck and C. Stöber, lawyers,

THE GENERAL COURT (Seventh Chamber),

composed of K. Kecsmár, President, U. Öberg (Rapporteur) and L. Truchot, Judges,

Registrar: J. Čuboň, Administrator,

having regard to the written part of the procedure,

further to the hearing on 4 March 2026,

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, Deva Holding Anonim Şirketi, seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 January 2025 (Case R 2189/2022-4) (‘the contested decision’).

Background to the dispute

2 On 20 November 2019, the applicant designated the European Union for international registration No 1 513 523 in respect of the following figurative sign:

3 The goods in respect of which protection within the European Union was sought are in Class 5 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Pharmaceuticals, medical and veterinary preparations; sanitary preparations for medical purposes; dietetic food and substances adapted for medical or veterinary use, food for babies; dietary supplements for human beings and animals; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides’.

4 On 28 May 2020, the intervener, Novartis AG, filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

5 The opposition was based, in particular, on international registration No 663 765 designating France and Germany for the word mark NOVARTIS, covering goods in Classes 5 and 10 corresponding to the following description:

– Class 5: ‘Pharmaceutical and veterinary preparations and substances, including preparations for healthcare; chemicals and chemical preparations and substances used for medical and pharmaceutical purposes and in medicines; dietetic substances for medical purposes; foods and beverages for babies, infants or invalids; vitamins; preparations for destroying vermin; herbicides, pesticides, fungicides; insecticides’;

– Class 10: ‘Medical, surgical, dental or veterinary apparatus and instruments; artificial limbs, eyes and teeth; orthopedic articles; suture materials; parts of all the aforesaid goods’.

6 The ground relied on in support of the opposition was, in particular, that set out in Article 8(5) 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).

7 Following a request made by the applicant, EUIPO invited the intervener to furnish proof of genuine use of the earlier mark which had been relied on in support of the opposition. The intervener complied with that request within the time limit set.

8 On 20 September 2022, the Opposition Division rejected the opposition.

9 On 11 November 2022, the intervener filed a notice of appeal with EUIPO against the Opposition Division’s decision.

10 By the contested decision, the Board of Appeal upheld the appeal on the ground that the cumulative conditions justifying the application of Article 8(5) of Regulation 2017/1001 were satisfied. Unlike the Opposition Division, the Board of Appeal concluded that a link could be established between the signs at issue in respect of all the contested goods, and that there was a prima facie risk of unfair advantage, which was not purely hypothetical. It also held that the applicant had failed to show due cause for the use of the contested international registration. Consequently, the Board of Appeal annulled the Opposition Division’s decision and remitted the case to it for a full and complete examination of the request for proof of use of the earlier mark, as well as an assessment of the intervener’s claim that the earlier mark enjoyed a high reputation for pharmaceutical preparations and substances.

Forms of order sought

11 The applicant claims that the Court should:

– annul the contested decision;

– order EUIPO to pay the costs.

12 EUIPO contends that the Court should:

– dismiss the action;

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

13 The intervener contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

Law

14 In support of its action, the applicant relies on two pleas in law, alleging, first, infringement of 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), read in conjunction with Article 95(2) of Regulation 2017/1001, and secondly, infringement of Article 8(5) of Regulation 2017/1001.

First plea: infringement of Article 95 (2) of Regulation 2017/1001 and Article 27 (4) of Delegated Regulation 2018/625

15 The Board of Appeal found, in paragraph 26 of the contested decision, that Annexes 1 to 15, which had been produced with the intervener’s statement of grounds for its appeal, had been filed for the first time before it.

16 That evidence consists, first, of extracts from EUIPO’s eSearch platform showing a limited number of trade marks registered in the European Union containing the element ‘vatis’ or ‘vartis’ and designating pharmaceutical products in Class 5 (Annex 1) and, secondly, extracts from the intervener’s and the applicant’s websites comparing the way in which the applicant presents its goods with the way in which the intervener markets its goods, as well as the therapeutic overlap between the parties’ goods (Annexes 2 to 15). The Board of Appeal held that that evidence met the conditions provided for in Article 27(4) of Delegated Regulation 2018/625, in that it was relevant and supplemented the evidence that had been submitted before the Opposition Division, and that it was therefore admissible.

17 The applicant submits that the Board of Appeal infringed Article 27(4) of Delegated Regulation 2018/625, read in conjunction with Article 95(2) of Regulation 2017/1001, by taking into account the evidence that the intervener had produced for the first time before it. According to the applicant, the intervener filed that evidence late and without valid justification. In that regard, the applicant submits that the intervener did not put forward any argument explaining why it had not submitted the evidence within the time limit set by the Opposition Division.

18 EUIPO and the intervener dispute the applicant’s arguments.

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

20 However, under Article 27(4) of Delegated Regulation 2018/625, the Board of Appeal may accept evidence submitted for the first time before it only where that evidence satisfies two conditions: first, that it is ‘on the face of it, likely to be relevant for the outcome of the case’, and secondly, that it ‘[has] not been produced in due time for valid reasons, in particular where [it is] merely supplementing relevant facts and evidence which had already been submitted in due time, or [is] filed to contest findings made or examined by the first instance of its own motion in the decision subject to appeal’.

21 That provision seeks to reconcile two potentially conflicting requirements. On the one hand, it encourages the parties to comply with the time limits set by EUIPO for the examination of a case. The fact that EUIPO may take account of facts and evidence submitted by the parties outside the time limits imposed on them only where certain conditions are met has such an incentive effect (see, to that effect, judgment of 13 March 2007, OHIM v Kaul , C‑29/05 P, EU:C:2007:162, paragraph 47).

22 On the other hand, by nevertheless preserving the possibility of taking into account facts and evidence submitted late by the parties, at least in opposition proceedings, that provision is such as to ensure that marks whose use could later successfully be challenged by means of annulment or infringement proceedings are not registered. As the Court of Justice has already held, reasons of legal certainty and sound administration speak in favour of that approach (see, to that effect, judgment of 13 March 2007, OHIM v Kaul , C‑29/05 P, EU:C:2007:162, paragraph 48).

23 Furthermore, it must be recalled that it is for the party submitting facts and evidence for the first time before the Board of Appeal to explain before it to what extent that submission satisfies the conditions laid down in Article 27(4) of Delegated Regulation 2018/625. However, that provision 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).

24 In the present case, the applicant does not dispute that the evidence produced for the first time before the Board of Appeal was, on the face of it, likely to be relevant to the assessment of genuine use of the contested mark. The first condition, laid down in Article 27(4)(a) of Delegated Regulation 2018/625, is therefore satisfied in the present case.

25 As regards the second condition, the Board of Appeal found, in paragraph 26 of the contested decision, that the evidence produced for the first time before it supplemented the relevant evidence which had already been submitted by the intervener before the Opposition Division, a point which, once again, the applicant does not dispute in the application. The second condition, laid down in Article 27(4)(b) of Delegated Regulation 2018/625, is therefore satisfied.

26 Accordingly, it must be concluded that the Board of Appeal duly considered the two cumulative conditions of applicability set out in Article 27(4) of Delegated Regulation 2018/625 and that it did not make any error of assessment in deciding to take into account the evidence which the intervener had submitted for the first time before it.

27 It follows from the above that the applicant’s first plea must be rejected as unfounded.

Second plea: infringement of Article 8 (5) of Regulation 2017/1001

28 By its second plea, the applicant submits that the Board of Appeal infringed Article 8(5) of Regulation 2017/1001. That plea is divided into six parts, alleging errors of assessment made by the Board of Appeal as regards, first, the similarity between the goods covered by the marks at issue; secondly, the reputation of the earlier mark; thirdly, the existence of a similarity between the signs at issue; fourthly, the existence of a link between those signs; fifthly, the existence of a risk of injury arising from the registration applied for; and, sixthly, the existence of due cause for registering and using the mark applied for.

29 Article 8(5) of Regulation 2017/1001 provides that, upon opposition by the proprietor of a registered earlier trade mark within the meaning of paragraph 2, the trade mark applied for must not be registered where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier EU trade mark, the trade mark has a reputation in the European Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned, and where the use without due cause of the trade mark applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

30 As regards the risk contemplated by Article 8(5) of Regulation 2017/1001, the primary function of a trade mark is unquestionably that of indicating origin. The fact remains that a mark also acts as a means of conveying other messages concerning, inter alia, the qualities or particular characteristics of the goods or services which it covers or the images and feelings which it conveys. To that effect each mark has an inherent economic value which is independent of and separate from that of the goods and services for which it is registered. The messages which are conveyed, inter alia, by a mark with a reputation or which are associated with it confer on that mark a significant value which deserves protection, particularly because, in most cases, the reputation of a mark is the result of considerable effort and investment on the part of its proprietor. Consequently, Article 8(5) of Regulation 2017/1001 ensures that a mark with a reputation is protected with regard to any application for an identical or similar mark which might adversely affect its image, even if the goods or services covered by the mark applied for are not similar to those for which the earlier mark with a reputation has been registered (judgment of 22 March 2007, Sigla v OHIM – Elleni Holding (VIPS) , T‑215/03, EU:T:2007:93, paragraph 35).

31 For an earlier trade mark to be afforded the broader protection under Article 8(5) of Regulation 2017/1001, a number of conditions must, therefore, be satisfied. First, the earlier trade mark which is claimed to have a reputation must be registered. Secondly, that mark and the mark applied for must be identical or similar. Thirdly, it must have a reputation in the European Union, in the case of an earlier EU trade mark, or in the Member State concerned, in the case of an earlier national trade mark. Fourthly, the use without due cause of the mark applied for must lead to the risk that unfair advantage might be taken of the distinctive character or the repute of the earlier trade mark or that it might be detrimental to the distinctive character or the repute of the earlier trade mark. As those conditions are cumulative, failure to satisfy one of them is sufficient to render that provision inapplicable (judgment of 22 March 2007, VIPS , T‑215/03, EU:T:2007:93, paragraph 34; see also judgment of 31 May 2017, Alma-The Soul of Italian Wine v EUIPO – Miguel Torres (SOTTO IL SOLE ITALIANO SOTTO il SOLE) , T‑637/15, EU:T:2017:371, paragraph 29 and the case-law cited).

32 The types of injury referred to in Article 8(5) of Regulation 2017/1001, where they occur, are the consequence of a certain degree of similarity between the earlier mark and the mark applied for, by virtue of which the relevant section of the public makes a connection between those two marks, that is to say, establishes a link between them even though it does not confuse them (see judgment of 11 June 2025, Fattorie Garofalo – Società Cooperativa Agricola v EUIPO – Pastificio Lucio Garofalo (fattorie garofalo) , T‑1036/23, not published, EU:T:2025:592, paragraph 97 and the case-law cited). The existence of such a link in the mind of the relevant public between the mark applied for and the earlier mark is therefore an essential implicit condition for the application of Article 8(5) of Regulation 2017/1001 (see judgment of 7 December 2022, Puma v EUIPO – Vaillant (Puma) , T‑623/21, not published, EU:T:2022:776, paragraph 119 and the case-law cited).

33 Although it is undoubtedly true that, in the absence of such a link in the mind of the public, the use of the trade mark applied for is not likely to take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier mark, the existence of such a link is not, however, sufficient, in itself, for it to be concluded that one of the types of injury referred to in Article 8(5) of Regulation 2017/1001, which constitute the specific condition for the protection of trade marks with a reputation laid down by that provision, has materialised (see order of 30 April 2009, Japan Tobacco v OHIM , C‑136/08 P, not published, EU:C:2009:282, paragraph 27 and the case-law cited).

34 The issue of whether the Board of Appeal infringed Article 8(5) of Regulation 2017/1001, as the applicant submits, must be examined in the light of those considerations.

The closeness of the goods covered by the marks at issue

35 The Board of Appeal held, in paragraph 59 of the contested decision, that the pharmaceutical preparations and substances covered by the earlier mark were identical to some of the goods covered by the mark applied for, while the other goods covered by that mark, falling within Class 5, were all used in the same medical field or were health-related and aimed at the same relevant public as the pharmaceutical preparations and substances.

36 According to the applicant, the Board of Appeal failed to take into account the fact that some of the contested goods were only very slightly similar to, or indeed were different from, the pharmaceutical preparations and substances covered by the earlier mark. In particular, the applicant submits that the contested goods ‘food for babies; material for stopping teeth, dental wax’ have only a low degree of similarity with the ‘pharmaceutical preparations and substances’, whereas the ‘preparations for destroying vermin; fungicides, herbicides’ are different.

37 EUIPO and the intervener dispute the applicant’s arguments.

38 EUIPO emphasises that the Board of Appeal, in paragraphs 59 and 66 of the contested decision, observed that the goods at issue were not all identical, but that they all belonged to the same sector or to related sectors, namely the pharmaceutical sector and the agrochemical sector. That assessment cannot be called into question, it submits, by the arguments advanced by the applicant in relation to specific contested goods.

39 The intervener adds that the contested goods ‘food for babies; material for stopping teeth, dental wax’ are similar to the ‘pharmaceutical preparations and substances’, as they also promote health and vitality. It submits, furthermore, that there is a link between the ‘preparations for destroying vermin; fungicides, herbicides’ and the ‘pharmaceutical preparations and substances’.

40 It should be observed that, although it is not a condition for the application of the relative ground for refusal provided for in Article 8(5) of Regulation 2017/1001 that the goods and services covered by the marks at issue be similar, the nature and degree of proximity of the goods or services concerned are nevertheless relevant factors in assessing whether there is a link between those trade marks (see judgment of 7 December 2022, Puma , T‑623/21, not published, EU:T:2022:776, paragraph 68 and the case-law cited).

41 Even if the relevant section of the public as regards the goods or services for which the marks at issue are registered is the same, or overlaps to some extent, those goods or services may be so dissimilar that the later mark is unlikely to bring the earlier mark to the mind of the relevant public (see, by analogy, judgment of 27 November 2008, Intel Corporation , C‑252/07, EU:C:2008:655, paragraph 49).

42 In the present case, the applicant does not dispute that the ‘pharmaceuticals, medical and veterinary preparations; sanitary preparations for medical purposes; dietetic food and substances adapted for medical or veterinary use; dietary supplements for human beings and animals; plasters, materials for dressings; disinfectants’, covered by the mark applied for, are identical to the ‘pharmaceutical preparations and substances’ covered by the earlier mark, or that they are used in the same medical field or that they are health-related and aimed at the same relevant public as the pharmaceutical preparations and substances.

43 There is no need to call those assessments of the Board of Appeal into question.

44 As regards the comparison between the ‘food for babies’ covered by the mark applied for and the ‘pharmaceutical preparations and substances’ covered by the earlier mark, it must be observed that food for babies covers a wide range of products, most of which are everyday consumer goods and have no medical purpose or properties.

45 That said, those goods are nevertheless defined as food which, from a medical point of view, is suitable for consumption by babies who, because of their physiology or for other medical reasons, are not yet able to consume all types of normal food. They are therefore goods which are specially composed in order to safeguard the health of infants and young children. Moreover, it cannot be ruled out that some foods for babies might be complementary to medicines which are administered to them, particularly within the context of the treatment of nutritional deficiencies of young children, in the sense that one is indispensable or important for the use of the other (see, to that effect, judgment of 2 March 2022, UGA Nutraceuticals v EUIPO – Vitae Health Innovation (VITADHA) , T‑149/21, not published, EU:T:2022:103, paragraph 51).

46 It follows from the foregoing that the ‘food for babies’ covered by the mark applied for and the ‘pharmaceutical preparations and substances’ covered by the earlier mark are similar to a low degree, which EUIPO does not dispute.

47 As regards the comparison of the ‘material for stopping teeth, dental wax’ covered by the mark applied for and the ‘pharmaceutical preparations and substances’ covered by the earlier mark, it must be observed that the former goods are goods used for the care and cleaning of teeth, while the goods covered by the earlier mark are specific pharmaceutical products intended to improve health or treat illnesses. Consequently, the contested goods differ in nature, purpose and method of use from the pharmaceutical preparations and substances covered by the earlier mark. Furthermore, they are aimed at different publics and are offered by different manufacturers through different distribution channels. Lastly they are neither in competition with nor complementary to each other.

48 It follows that the ‘material for stopping teeth, dental wax’ covered by the mark applied for is different from the ‘pharmaceutical preparations and substances’ covered by the earlier mark.

49 As regards the comparison between the ‘preparations for destroying vermin; fungicides, herbicides’ covered by the mark applied for and the ‘pharmaceutical preparations and substances’, it must be observed, in the first place, that the term ‘herbicide’ refers to all phytosanitary formulae designed to protect the environment, and in particular crops, against undesirable plants. Thus, the objective of such a product is entirely separate from the objective of pharmaceutical products to protect human health and it is well known that the active substances which they contain are not generally related to those used in pharmaceutical products. In addition, the distribution channels are also different. Lastly, with regard both to their intended purpose and to their nature, there is no competition or complementarity with pharmaceutical products (judgment of 13 May 2015, Ferring v OHIM – Kora (Koragel) , T‑169/14, not published, EU:T:2015:280, paragraph 46). Accordingly, the herbicides and the pharmaceutical preparations and substances are not similar.

50 In the second place, unlike herbicides, preparations for destroying vermin and fungicides cover a large spectrum of goods which is not restricted to goods intended for the protection of plants.

51 Thus, the ordinary meaning of the term ‘vermin’ refers in everyday language to animal species whose presence is considered to be a risk or a nuisance to humans, their environment and human activities. That term may therefore refer, inter alia, to animal species representing a potential risk or nuisance to human health and to the health of domestic animals, for example, a parasitic species or a species which may be the source, by its presence or contact, of various animal and/or human diseases (judgment of 13 May 2015, Koragel , T‑169/14, not published, EU:T:2015:280, paragraph 49).

52 Consequently, it is possible that some preparations for destroying vermin may be used in order to prevent the risks to human or animal health which the species whose elimination is sought represent. In addition, the use of those preparations may be complementary to that of pharmaceutical or veterinary preparations used to treat ailments caused, directly or indirectly, by the presence of those animal species or contact with them. Moreover, some of those preparations, in particular some insecticides, may be sold in pharmacies (judgment of 13 May 2015, Koragel , T‑169/14, not published, EU:T:2015:280, paragraph 50).

53 Thus, in the light of the intended purpose of part of the preparations for destroying vermin, their complementary nature in relation to pharmaceutical or veterinary preparations and their distribution channels, it must be held that there is a low degree of similarity of that category with the pharmaceutical preparations and substances covered by the earlier mark (judgment of 13 May 2015, Koragel , T‑169/14, not published, EU:T:2015:280, paragraph 51).

54 Similarly, the ordinary meaning, in everyday language, of the term ‘fungicide’ is not restricted to phytosanitary chemical products. It appears that that term generally refers to any active ingredient used to kill parasitic fungi, without restriction to a specific sector (judgment of 13 May 2015, Koragel , T‑169/14, not published, EU:T:2015:280, paragraph 52).

55 Consequently, for reasons similar to those set out in paragraphs 51 to 53 above, it must be held that there is a low degree of similarity between the fungicides and the pharmaceutical preparations and substances covered by the earlier mark (judgment of 13 May 2015, Koragel , T‑169/14, not published, EU:T:2015:280, paragraph 54).

56 Consequently, in relation to the assessment of whether there is a link between the marks at issue, it must be held that some of the goods covered by the mark applied for bear only a low degree of similarity, or no similarity, to the pharmaceutical preparations and substances covered by the earlier mark.

Reputation of the earlier mark

57 In the present case, for reasons of procedural economy, the Opposition Division assessed the intervener’s opposition under Article 8(5) of Regulation 2017/1001 on the assumption that the earlier mark enjoyed a solid reputation in France and Germany for pharmaceutical preparations and substances falling within Class 5.

58 In paragraph 56 of the contested decision, the Board of Appeal stated that it would proceed, in accordance with the terms used by the Opposition Division in its decision, on the basis that the earlier mark had the high degree of reputation claimed by the intervener.

59 The applicant submits that the Board of Appeal proceeded, without justification, on the assumption that the earlier mark enjoyed a high degree of reputation, without taking into account the fact that the Opposition Division had already applied the most favourable assumption possible as regards the reputation of that mark. Furthermore, in circumstances where neither the Opposition Division nor the Board of Appeal carried out a factual assessment of reputation, it is not for the Court to assess the reputation of the earlier mark, for the first time, on the basis of the evidence submitted by the intervener.

60 The applicant adds, for the sake of completeness, that the evidence submitted by the intervener is insufficient and inadequate to establish that the earlier mark enjoys a high degree of reputation.

61 EUIPO and the intervener dispute the applicant’s arguments.

62 The reputation of an earlier mark must be established as at the filing date of the application for the contested mark (see judgment of 16 October 2018, VF International v EUIPO – Virmani (ANOKHI) , T‑548/17, not published, EU:T:2018:686, paragraph 103 and the case-law cited). Documents bearing a date after that date cannot, however, be denied evidential value if they enable conclusions to be drawn with regard to the situation as it was on that date. It cannot automatically be ruled out that a document drawn up some time before or after that date may contain useful information in view of the fact that the reputation of a trade mark is, in general, acquired progressively. The evidential value of such a document is likely to vary depending on whether the period covered is close to or distant from the filing date (see judgment of 24 April 2024, Kneipp v EUIPO – Patou (Joyful by nature) , T‑157/23, EU:T:2024:267, paragraph 22 and the case-law cited).

63 Furthermore, the existence of reputation must be assessed by taking into consideration all the relevant factors of the case, that is to say, in particular, the market share held by the trade mark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it (see judgment of 28 June 2018, EUIPO v Puma , C‑564/16 P, EU:C:2018:509, paragraph 56 and the case-law cited). However, the above list is merely illustrative. It cannot therefore be required that proof of the reputation of a mark pertains to all those elements (judgments of 8 November 2017, Oakley v EUIPO – Xuebo Ye (Representation of a discontinuous ellipse) , T‑754/16, not published, EU:T:2017:786, paragraph 101, and of 16 October 2018, ANOKHI , T‑548/17, not published, EU:T:2018:686, paragraph 95).

64 In that regard, it must be held that, where, as in the present case, EUIPO examines the application of Article 8(5) of Regulation 2017/1001, it is required either to determine precisely the degree of strength of the reputation of the earlier mark, which is a relevant factor for the overall assessment of the link, or, at the very least, expressly to take into account the best-case scenario for the losing party before it (judgment of 22 October 2025, Puma v EUIPO – CMS (CMS Italy) , T‑491/24, EU:T:2025:976, paragraph 31).

65 In the present case, by assuming that the earlier mark enjoyed a ‘solid reputation’, the Opposition Division took into account the best-case scenario for the losing party before it, namely the intervener, a point which the applicant does not dispute.

66 It is apparent from paragraph 56 of the contested decision that the Board of Appeal proceeded on the same assumption concerning the reputation of the earlier mark as the Opposition Division. It is true that the Board of Appeal uses the term ‘high’ rather than ‘solid’ in relation to the degree of reputation, but it is also apparent from paragraph 56 of the contested decision that the Board considers both terms to refer to the same degree of reputation.

67 In view of the foregoing, the Board of Appeal did not make any error of assessment when it assumed that the earlier mark enjoyed a high degree of reputation.

The existence of a similarity between the signs at issue

68 The existence of a similarity between an earlier mark and a mark applied for is a precondition for the application both of Article 8(1)(b) and of Article 8(5) of Regulation 2017/1001. That condition requires, in the context both of Article 8(1)(b) and of Article 8(5) of that regulation, the existence, in particular, of elements of visual, phonetic or conceptual similarity (see, to that effect, judgment of 24 March 2011, Ferrero v OHIM , C‑552/09 P, EU:C:2011:177, paragraphs 51 and 52).

69 However, those provisions differ in terms of the degree of similarity required. Whereas the implementation of the protection provided for under Article 8(1)(b) of Regulation 2017/1001 is conditional upon a finding of a degree of similarity between the marks at issue such that there exists a likelihood of confusion between them on the part of the relevant section of the public, the existence of such a likelihood is not necessary for the protection conferred by Article 8(5) of that regulation. Accordingly, the types of injury referred to in Article 8(5) of Regulation 2017/1001 may be the consequence of a lesser degree of similarity between the earlier mark and the mark applied for, provided that it is sufficient for the relevant section of the public to make a connection between those marks, that is to say, to establish a link between them. On the other hand, it is not apparent either from the wording of those provisions or from the case-law that the similarity between the marks at issue must be assessed in a different way, according to whether the assessment is carried out under Article 8(1)(b) of Regulation 2017/1001 or under Article 8(5) thereof (judgment of 24 March 2011, Ferrero v OHIM , C‑552/09 P, EU:C:2011:177, paragraphs 53 and 54).

70 It follows that, in relation to the visual, phonetic and conceptual similarities, the comparison of the signs at issue must be based on the overall impression they produce, taking account, inter alia, of their distinctive and dominant elements (see, to that effect, judgment of 16 April 2008, Citigroup and Citibank v OHIM – Citi (CITI) , T‑181/05, EU:T:2008:112, paragraph 65).

71 In the present case, the marks to be compared are presented as follows:

– the mark applied for is the following figurative sign:

– the earlier mark, in respect of which reputation is claimed, is the international registration NOVARTIS.

– The distinctive and dominant elements

72 The Board of Appeal stated, in paragraphs 40 and 41 of the contested decision, that the word element ‘novartis’ of the earlier mark would be perceived as meaningless, and as such as possessing normal distinctive character in relation to the relevant earlier goods. Furthermore, it could not be concluded that the relevant public would necessarily and exclusively divide the earlier mark into ‘nova’ and ‘rtis’, rather than perceiving it as a meaningless whole. As regards the contested mark, the Board of Appeal concluded, in paragraph 42 of the contested decision, that the word element ‘devatis’ constituted the distinctive and dominant part of that mark.

73 There is nothing in the file that would provide a basis for calling into question those assessments of the Board of Appeal, which, moreover, have not been challenged by the applicant.

– The visual, phonetic and conceptual comparison of the signs at issue

74 In paragraphs 44 and 45 of the contested decision, the Board of Appeal found that the signs at issue coincided in their second syllable, except that the second syllable of the earlier mark contained the letter ‘r’, but differed in their initial parts, respectively ‘no’ and ‘de’, and in the figurative aspects of the contested mark, which would, however, be perceived by the relevant public as entirely lacking in distinctive character, such that the signs at issue were to be regarded as visually and phonetically similar to a low degree. As regards the conceptual comparison, the Board of Appeal found, in paragraph 46 of the contested decision, that that comparison remained neutral, since neither of the signs, taken as a whole, would be perceived as having any meaning.

75 The applicant submits, first, that the signs at issue differ considerably in both phonetic and visual terms. The only coinciding features are the overlap in the element ‘tis’ at the end and the letters ‘v’ and ‘a’ in the middle of the signs. Those similarities do not dominate the overall impression produced by the signs.

76 Secondly, the applicant submits that the signs at issue differ in their beginnings, namely ‘no’ and ‘de’. In that regard, the applicant argues that the beginning of a sign generally attracts the public’s attention and is remembered more clearly than the rest of it. The applicant adds that the graphic representation of the contested mark differs from the earlier mark, particularly as regards the stylisation of the letters in bold type, the rather prominent initial capital ‘D’ and the additional black-bordered square. It submits that those visual differences between the signs are apparent and play a role in the overall impression produced by each of them. This results in visual and phonetic dissimilarity between the signs at issue.

77 EUIPO and the intervener dispute the applicant’s arguments.

78 As regards the visual comparison of the marks at issue, it is apparent from the case-law that, first, there is nothing to prevent a determination as to whether there is any visual similarity between a word mark and a figurative mark, since the two types of mark have graphic form capable of creating a visual impression (see judgment of 4 May 2005, Chum v OHIM – Star TV (STAR TV) , T‑359/02, EU:T:2005:156, paragraph 43 and the case-law cited).

79 In the present case, it should be observed that the marks at issue have the same third and fourth letters, namely ‘v’ and ‘a’, and the same ending, namely the sequence of letters ‘tis’, which implies a certain degree of similarity between the marks at issue.

80 However, there are also a certain number of visual differences between the marks at issue.

81 In the first place, the marks at issue differ in their initial parts, respectively ‘no’ and ‘de’, and by the presence of the letter ‘r’ in the earlier mark.

82 In the second place, whilst the marks at issue share the letter sequences ‘va’ and ‘tis’, these appear in a different font in the mark applied for. Furthermore, as the applicant has pointed out, the latter mark also includes a square with black borders. It is undoubtedly true that, 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). Nevertheless, the figurative elements of the mark applied for are not negligible.

83 In the light of the above considerations, it is appropriate to uphold the Board of Appeal’s conclusion that the signs at issue, taken as a whole, are visually similar to a low degree.

84 Secondly, as regards the phonetic comparison of the marks at issue, it must be pointed out that, as the Board of Appeal observed in paragraph 45 of the contested decision, the relevant public will pronounce the earlier mark differently from the contested mark. The marks at issue differ in their respective first syllables, ‘de’ and ‘no’, and coincide in their second syllable – except that the earlier mark contains the letter ‘r’ – as well as in their third syllable.

85 Given that the first syllables of the marks at issue are different and that the presence of the letter ‘r’ in the second syllable of the earlier mark results in a different pronunciation of the second syllable of the marks at issue, it is appropriate to uphold the Board of Appeal’s conclusion that there is a low degree of phonetic similarity.

86 Thirdly, as regards the conceptual comparison of the signs at issue, no party has disputed the Board of Appeal’s finding that that comparison remains neutral, and there is nothing in the file to call that finding into question.

Whether there is a link between the signs at issue

87 The Board of Appeal held that the relevant section of the public would make a connection between the marks at issue, basing its reasoning on a number of factors which it set out in paragraph 59 of the contested decision. Thus, it concluded that the relevant public, when encountering the mark applied for, would be likely to associate that mark with the earlier mark and to establish a link between the marks at issue.

88 The applicant submits that the Board of Appeal was incorrect to find that the relevant public could establish a link between the earlier mark and the mark applied for.

89 In the first place, the applicant submits that the signs at issue are different and that the earlier mark is used in a manner which clearly distinguishes it from the mark applied for. In the second place, the applicant submits that the relevant public will not establish a link between the signs at issue, because the relevant public’s level of attention is particularly high. In the third place, the applicant submits that the ending of the marks at issue, ‘tis’, is a common word element in the medical field, associated with medical terms, and will therefore not be associated with the intervener. In the fourth place, the applicant states that the Board of Appeal failed to take into account the fact that some of the contested goods were only very slightly similar, or indeed different.

90 EUIPO and the intervener dispute the applicant’s arguments.

91 As regards the applicant’s first complaint, EUIPO submits that the forms of actual use of the earlier mark have no impact on the comparison of the signs. As regards the applicant’s second complaint, EUIPO maintains that the Board of Appeal did not limit its assessment of the link to one part of the relevant public and that it therefore, implicitly but necessarily, took into account the implications of the nature of the goods in making its assessment, including as regards the high level of attention paid by both the general public and the professional public. As regards the applicant’s third complaint, EUIPO submits that the Board of Appeal considered and weighed the relevant factors in the comparison of the signs, based on their respective overall impressions. As regards the applicant’s fourth complaint, EUIPO submits that the Board of Appeal, in paragraphs 59 and 66 of the contested decision, expressly noted that not all the goods at issue were identical, but that they all belonged to the same sector or to related sectors.

92 As regards the fourth condition laid down by Article 8(5) of Regulation 2017/1001, the Court recalls that the types of injury referred to in that provision, where they occur, are the consequence of a certain degree of similarity between the earlier mark and the mark applied for, by virtue of which the relevant section of the public makes a connection between those two marks. In other words, the relevant section of the public establishes a link between those marks, even though it does not confuse them. The fact that, for the average consumer, who is reasonably well informed and reasonably observant and circumspect, the mark applied for would call the earlier mark to mind is tantamount to the existence of a link between those marks (judgment of 24 April 2024, Joyful by nature, T‑157/23, EU:T:2024:267, paragraph 65 (not published)).

93 The existence of such a link must be assessed globally, taking into account all factors relevant to the circumstances of the case. Those factors include the degree of similarity between the marks at issue, the nature of the goods or services for which the marks at issue are respectively registered, including the degree of closeness or dissimilarity between those goods or services, and the relevant section of the public, the strength of the earlier mark’s reputation, the degree of the earlier mark’s distinctive character, whether inherent or acquired through use, and the existence of a likelihood of confusion on the part of the public (judgment of 24 April 2024, Joyful by nature, T‑157/23, EU:T:2024:267, paragraph 66 (not published)).

94 The Board of Appeal’s assessment as to the link between the marks at issue must be examined in the light of those considerations.

95 In the present case, as regards the degree of similarity between the marks at issue, the Board of Appeal correctly stated that those marks exhibited a low degree of visual and phonetic similarity, while the conceptual comparison was neutral.

96 While some similarity, even faint, cannot in itself rule out the application of Article 8(5) of Regulation 2017/1001 (see, to that effect, judgment of 20 November 2014, Intra-Presse v Golden Balls , C‑581/13 P and C‑582/13 P, not published, EU:C:2014:2387, paragraphs 72 to 77 and the case-law cited), the Court of Justice has also held that the fact that two marks are identical, and even more so if they are merely similar, is not sufficient for it to be concluded that there is a link between those marks (see judgment of 26 July 2017, Staatliche Porzellan-Manufaktur Meissen v EUIPO , C‑471/16 P, not published, EU:C:2017:602, paragraph 51 and the case-law cited).

97 In the present case, the marks at issue are not identical and differ in their initial parts, respectively ‘no’ and ‘de’, and by the presence of the letter ‘r’ in the earlier mark. Those differences are not negligible in assessing the similarity between the two signs and give them different expressions in the eyes of the relevant public, making it unlikely that, on seeing the mark applied for, that public will make a connection with the earlier mark on account of its reputation.

98 As regards the relevant public, the Court recalls that the existence of injury consisting of unfair advantage taken of the distinctive character or the repute of the earlier mark, in so far as what is prohibited is the drawing of benefit from that mark by the proprietor of the mark applied for, must be assessed by reference to average consumers of the goods or services covered by the mark applied for, who are reasonably well informed and reasonably observant and circumspect (judgment of 27 November 2008, Intel Corporation , C‑252/07, EU:C:2008:655, paragraphs 35 and 36). It should also be borne in mind that the average consumer’s degree of attentiveness is likely to vary according to the category of goods or services in question (see judgment of 15 December 2010, Novartis v OHIM – Sanochemia Pharmazeutika (TOLPOSAN) , T‑331/09, EU:T:2010:520, paragraph 23 and the case-law cited).

99 It is apparent from the findings set out in paragraph 35 of the contested decision that the relevant public for the goods covered by the mark applied for consists of the general public and professionals in the medical and pharmaceutical sectors. In that context, although the existence of injury consisting of unfair advantage taken of the distinctive character or reputation of the earlier mark must be assessed by reference to average consumers of the goods covered by the trade mark applied for, who are reasonably well informed and reasonably observant and circumspect, in the present case, average consumers of the goods covered by the mark applied for are likely to be more attentive (see, to that effect and by analogy, judgment of 9 September 2020, Kludi v EUIPO – Adlon Brand (ADLON) , T‑144/19, not published, EU:T:2020:404, paragraph 169).

100 Thus, it is apparent from the case-law that, in respect of pharmaceutical products, the level of attention of the relevant public is relatively high (judgment of 28 October 2010, Farmeco v OHIM – Allergan (BOTUMAX) , T‑131/09, not published, EU:T:2010:458, paragraph 65). Contrary to the intervener’s contention, that applies even in cases where the pharmaceutical products are available to consumers over the counter, provided that they relate to their health (see, to that effect, judgment of 15 December 2010, TOLPOSAN , T‑331/09, EU:T:2010:520, paragraph 26 and the case-law cited).

101 Similarly, products which concern the health of final consumers or that of their domestic animals, or even seek to protect it, such as veterinary preparations, sanitary preparations for medical purposes, dietetic substances adapted for medical use, plasters and materials for dressings, material for stopping teeth, dental wax and disinfectants, will receive a heightened level of attention from those same consumers (see judgment of 13 May 2015, Koragel , T‑169/14, not published, EU:T:2015:280, paragraph 38 and the case-law cited). Moreover, as the Court has already held, since it is necessary for the well-being and health of children, and moreover those of a young age, food for babies is likely to be the subject of a level of attention from consumers which is at least above average, even if it is an everyday consumer product marketed by large retailers (judgment of 13 May 2015, Koragel , T‑169/14, not published, EU:T:2015:280, paragraph 38).

102 The same is true of preparations for destroying vermin, fungicides and herbicides. First, consumers will pay particular attention to the effectiveness of those goods which they buy to protect themselves against the presence in their environment of harmful or undesirable living organisms. Secondly, the average consumer is aware that those goods may present health risks because of their biocidal properties (judgment of 13 May 2015, Koragel , T‑169/14, not published, EU:T:2015:280, paragraph 39).

103 The Board of Appeal therefore erred in its assessment of the facts by failing to take account, in its assessment of the link between the marks at issue, of the fact that the level of attention of the relevant public would be at least above average in respect of all the goods in question.

104 As regards the reputation of the earlier mark, as stated in paragraph 67 above, the Board of Appeal did not make any error of assessment in assuming that that mark enjoyed a ‘solid reputation’.

105 Nevertheless, it is clear from the case-law that the mere fact that the earlier mark has a huge reputation for certain specific types of goods or services does not necessarily imply that there is a link between the marks at issue (see, by analogy, judgment of 27 November 2008, Intel Corporation , C‑252/07, EU:C:2008:655, paragraph 64).

106 Furthermore, although the Board of Appeal examined the possibility that the relevant public would establish a link between the marks at issue, it also based its analysis on an incorrect assessment of the closeness of the goods at issue. Even assuming that the earlier mark enjoyed a high reputation for pharmaceutical preparations and substances falling within Class 5, that did not necessarily mean that the relevant public would establish a link with the mark applied for in respect of ‘food for babies; material for stopping teeth, dental wax; preparations for destroying vermin; fungicides, herbicides’ covered by the mark applied for, as those goods are different from, or have only a low degree of similarity to, the pharmaceutical preparations and substances covered by the earlier mark.

107 In the light of the foregoing, the Court finds that, in its assessment of all the relevant factors, for the purpose of establishing whether there was a link between the marks at issue, within the meaning of Article 8(5) of Regulation 2017/1001, the Board of Appeal erred in holding that the nature of the goods covered by the mark applied for justified the conclusion that there was a link between the marks at issue even though most of those goods were not identical and had only a limited degree of similarity to, or were even different from, the ‘pharmaceutical preparations and substances’ covered by the earlier mark.

108 Furthermore, even if the Board of Appeal was correct to rely on the assumption that the earlier mark enjoyed a high degree of reputation for pharmaceutical preparations and substances and on the distinctive character of that mark in relation to those goods, it failed to take proper account, having regard to the circumstances of the case, of the low degree of similarity between the marks at issue and the fact that the level of attention of the relevant public was likely to be higher when purchasing the goods covered by the trade mark applied for.

109 In those circumstances, the Board of Appeal made an error of assessment in concluding that the relevant public would be likely to establish a link between the marks at issue, for the purposes of Article 8(5) of Regulation 2017/1001.

110 Given the cumulative nature of the conditions provided for by Article 8(5) of Regulation 2017/1001, the conclusion set out in paragraph 109 above is sufficient to uphold the second plea raised by the applicant and, consequently, to annul the contested decision, without it being necessary to examine the sixth part of that plea, concerning the existence of due cause for use of the mark applied for.

Costs

111 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.

112 Since EUIPO has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the applicant.

113 In addition, under Article 138(3) of the Rules of Procedure, the General Court may order an intervener to bear its own costs. The intervener, which intervened in support of EUIPO, is to bear its own costs.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1. Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 January 2025 (Case R 2189/2022-4);

2. Orders EUIPO to bear its own costs and to pay those incurred by Deva Holding Anonim Şirketi;

3. Orders Novartis AG to bear its own costs.

Delivered in open court in Luxembourg on 23 September 2026.

* Language of the case: English.