Judgment of the General Court (Ninth Chamber) 9 September 2026

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

9 September 2026 ( * )

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

In Case T‑420/25,

CFL Australia Pty Ltd, established in Melbourne (Australia), represented by P. Fibich, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by E. Nicolás Gómez, acting as Agent,

defendant,

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

Gong cha Global Ltd, established in London (United Kingdom), represented by M. Borucka, lawyer,

THE GENERAL COURT (Ninth Chamber),

composed of S. Kingston (Rapporteur), President, A. Marcoulli and P. Zilgalvis, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, CFL Australia Pty Ltd, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 12 May 2025 (Case R 2191/2024-2) (‘the contested decision’).

Background to the dispute

2 On 12 September 2022, the applicant designated the European Union in a procedure for the international registration of the word sign GOTCHA.

3 The mark applied for covered goods and services in Classes 30, 32 and 43 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 30: ‘Apple flavoured tea; aromatic teas (other than for medicinal use); artificial tea (other than for medicinal use); beverages made of tea; beverages with tea base; chai tea; cocoa based products; ice; ice beverages with a chocolate base; ice beverages with a cocoa base; ice beverages with a coffee base; ice cream; iced coffee (coffee based beverages); fruit flavoured tea (other than medicinal); herbal tea (other than for medicinal use); fruit tea (other than for medical purposes); iced tea; instant tea (other than for medicinal purposes); jasmine tea, other than for medicinal purposes; non-medicated tea based beverages; non-medicated tea beverages; non-medicated tea extracts; non-medicated tea products; rooibos tea (not medicinal); packaged tea (other than for medicinal use); preparations for making tea based beverages; preparations with a tea base; kombucha tea; tea (not medicinal); tea-based beverages; artificial coffee; beverages made from coffee; coffee; coffee beverages; coffee beverages with milk; coffee drinks; coffee (flavourings); coffee-based beverages; preparations for making chocolate based beverages; preparations for making chocolate beverages; preparations for making cocoa based beverages; preparations for making coffee based beverages; preparations with a coffee base; chocolate beverages; chocolate beverages with milk; beverages with a chocolate base; instant powder for making flavoured coffee-based, tea-based or cocoa-based drinks’;

– Class 32: ‘Non-alcoholic beverages flavored with tea; non-alcoholic beverages flavored with coffee’;

– Class 43: ‘Preparation of food and drink; snack bars (provision of food and drink); takeaway food and drink services; food and drink catering; providing food and drink; cafe services; cafes; coffee shop services; catering services; mobile catering services; cafeterias; coffee bar and coffee house services (provision of food and drink); hospitality services (food and drink)’.

4 On 28 April 2023, the intervener, Gong cha Global Ltd, 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, in particular, on the earlier EU word mark GONG CHA, covering goods and services in Classes 30, 32, 35 and 43, corresponding, for each of those classes, to the following description:

– Class 30: ‘Tea; beverages made of tea; tea bags; aromatic teas (other than for medicinal use); fruit teas; roselle tea; Iongan tea; tea (non-medicated) containing milk; herbal tea (other than for medical use); Brown rice tea; coffee; beverages made of coffee; cocoa; beverages made from cocoa; chocolate; beverages made from chocolate; ice cream; ice for refreshment; ice desserts; fructose for food; sugar; honey’;

– Class 32: ‘Non-alcoholic beverages; sorbets [beverages]; soft drinks; fruit-flavored beverages; non-alcoholic fruit extracts; non-alcoholic fruit juice beverages; soda water; vegetable juices [beverages]; must; orange juice; tomato juice [beverage]; fruit-based soft drinks flavored with tea; non-alcoholic beverages flavored with tea; fruit juice; isotonic beverages; preparations for making beverages; powders for effervescing beverages’;

– Class 35: ‘Import-export agencies; commercial administration of the licensing of the goods and services of others; retail services or wholesale connected with carbonated drinks [refreshing beverages] and non-alcoholic fruit juice beverages; retail services and wholesale services connected with coffee-based beverages and cocoa-based beverages; retail services or wholesale services connected with processed food; retail services or wholesale services connected with milk products; retail services or wholesale services connected with desserts; retail services and wholesale services connected with tea; on-line advertising on a computer network’;

– Class 43: ‘Providing of beverage; providing of desserts; tea rooms; hot pot restaurants; coffee shops; bar services; snack bar services; mobile cafe services for providing food and drink; mobile restaurant services; restaurants; fast-food restaurants; providing of breakfast; providing of food and drink; takeaway services’.

6 The ground relied on in support of the opposition was, in particular, 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).

7 On 12 September 2024, the Opposition Division rejected the opposition.

8 On 12 November 2024, the intervener filed a notice of appeal with EUIPO against the Opposition Division’s decision.

9 By the contested decision, the Board of Appeal upheld the appeal on the basis of Article 8(1)(b) of Regulation 2017/1001. First, the Board of Appeal found that the goods and services covered by the applicant’s application were aimed at the general public as well as professionals, the level of attention of whom would vary, respectively, between average and high. Secondly, it decided to focus its analysis on Polish-speaking consumers of the European Union. Thirdly, it considered that the goods and services covered by the mark applied for were at times identical to those covered by the earlier mark – with regard to the goods and services in Classes 32 and 43 – and at times identical or highly similar to those of the earlier mark – with regard to the goods in Class 30. Fourthly, it found that the elements making up the signs at issue were normally distinctive and that those signs were visually similar to an average degree and that the degree of phonetic similarity between those signs was high. As regards the conceptual comparison, the Board of Appeal considered it to be neutral or that the signs were conceptually not similar. Fifthly, as regards the global assessment of the likelihood of confusion, it found that the conceptual differences between the signs at issue were not sufficient to neutralise the visual and phonetic similarities. Accordingly, the Board of Appeal found that there could be a likelihood of confusion on the part of the relevant public as regards the commercial origin of the goods covered by the two marks at issue.

Forms of order sought

10 The applicant claims that the Court should:

– annul the contested decision;

– order EUIPO to pay the costs.

11 EUIPO contends that the Court should:

– dismiss the action;

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

12 The intervener contends that the Court should:

– in essence, dismiss the action;

– order the applicant to pay the costs.

Law

13 In support of its action, the applicant relies on five pleas in law, alleging, (i) an error of law in the application of the neutralisation principle, (ii) infringement of an essential procedural requirement due to a failure to provide sufficient reasons for admitting late evidence, (iii) an error in the assessment of similarity between goods in Class 30 and services in Class 43, (iv) the unlawful introduction of a new criterion for assessing the neutralisation of similarities and (v) infringement due to an unjustified and unreasoned change in the definition of the relevant public.

14 The Court considers it necessary to reclassify the pleas raised in the application, with the result that the applicant relies, in essence, on two pleas, alleging, (i) infringement of Article 94(1) of Regulation 2017/1001 and of Article 27(4) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation (EU) 2017/1001 of the European Parliament and of the Council on the European Union trade mark, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1), and (ii) infringement of Article 8(1)(b) of Regulation 2017/1001.

F irst plea, alleging infringement of Article 94(1) of Regulation 2017/1001 and of Article 27(4) of Delegated Regulation 2018/625

15 The applicant submits that the Board of Appeal infringed an essential procedural requirement by admitting late-filed evidence without providing adequate reasoning for its decision in that regard, thereby infringing Article 94(1) of Regulation 2017/1001 and Article 27(4) of Delegated Regulation 2018/625.

16 According to the applicant, the Board of Appeal accepted new evidence submitted by the intervener in support of its opposition based on Article 8(1)(b) of Regulation 2017/1001 without, however, clearly showing that it had exercised its discretionary power under Article 95(2) of that regulation, or stating the reasons for admitting that new evidence.

17 EUIPO, supported by the intervener, claims that that plea is ineffective, since the contested decision focuses exclusively on the assessment of the likelihood of confusion based on the inherent distinctiveness of the earlier mark, without referring to the evidence adduced by the intervener in order to establish the reputation and enhanced distinctiveness of that mark.

18 The intervener adds that, in any event, that plea is unfounded.

19 In that connection, it must be borne in mind that Article 94(1) of Regulation 2017/1001 provides that decisions of EUIPO must state the reasons on which they are based. Moreover, under Article 95(2) of that regulation, EUIPO may disregard facts or evidence which are not submitted in due time by the parties concerned.

20 In particular, under Article 27(4) of Delegated Regulation 2018/625, the Board of Appeal may accept facts or evidence submitted for the first time before it only where those facts or evidence are, on the face of it, likely to be relevant for the outcome of the case and they have not been produced in due time for valid reasons, in particular where they are merely supplementing relevant facts and evidence which had already been submitted in due time, or are filed to contest findings made or examined by the first instance of its own motion in the decision subject to appeal.

21 In the present case, it is true that it is apparent from paragraphs 13 to 17 of the contested decision that, during the proceedings before the Board of Appeal, the intervener submitted evidence for the first time which the Board of Appeal found to be acceptable on the basis of Article 95(2) of Regulation 2017/1001 and Article 27(4) of Delegated Regulation 2018/625.

22 However, as appears from paragraphs 18 to 74 of the contested decision, in its examination of the ground for refusal based on Article 8(1)(b) of Regulation 2017/1001, the Board of Appeal did not refer to any of that evidence. Furthermore, as EUIPO submits before the Court and as is apparent from the appeal brought before the Board of Appeal by the intervener, the intervener had submitted that evidence in support of its line of argument alleging the enhanced distinctiveness of the earlier mark and the reputation of that mark. It is clear that, in the contested decision, the Board of Appeal did not examine that line of argument, but based its assessment solely on the inherent distinctiveness of that mark, as is apparent from paragraph 61 of the contested decision.

23 According to the case-law, pleas which do not seek to challenge the grounds on which the Board of Appeal dismissed the appeal brought before it must be regarded as ineffective (see judgment of 27 April 2022, Group Nivelles v EUIPO – Easy Sanitary Solutions (Shower drainage channel) , T‑327/20, EU:T:2022:263, paragraph 101 and the case-law cited).

24 Accordingly, since, in the contested decision, the Board of Appeal did not rely on evidence the acceptance of which is challenged by the applicant, the first plea must be dismissed as ineffective, given that the question whether that decision was adequately reasoned and, as the case may be, well founded in that regard, is irrelevant to its lawfulness.

25 In any event, it should be noted that, in paragraph 17 of the contested decision, the Board of Appeal expressly stated that the evidence supplemented relevant facts and evidence which had already been submitted in due time and that that evidence was filed to contest findings made or examined by the Opposition Division of its own motion, which corresponds to the situations provided for in Article 27(4)(b) of Delegated Regulation 2018/625. Accordingly, the applicant is not justified in claiming that the contested decision is vitiated by an insufficient statement of reasons in that connection.

26 In those circumstances, the first plea must be rejected.

S econd plea, alleging infringement of Article 8(1)(b) of Regulation 2017/1001

27 The applicant relies, in essence, on four parts, alleging, (i) a failure to state reasons, procedural irregularity and errors of law resulting from the Board of Appeal’s change to the definition of the relevant public, (ii) an error of law and an error of assessment in the comparison between the goods in Class 30 and the services in Class 43, (iii) a manifest error of assessment which vitiates the conceptual comparison of the signs at issue and (iv) errors of law that vitiate the application of the neutralisation principle in the global assessment of the likelihood of confusion.

28 As a preliminary point, it should be pointed out that, under Article 8(1)(b) of Regulation 2017/1001, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.

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

The relevant public

30 In the first part of the second plea, the applicant alleges an infringement of the established principles concerning the definition of the relevant public in trade mark matters and an infringement of Article 27(2) and (4)(b) and Article 72(2) of Regulation 2017/1001, a failure to state reasons and a procedural irregularity on the ground that the Board of Appeal deviated, without justification or reasoning, from the assessments of the Opposition Division concerning the relevant public.

31 The applicant asserts that the Opposition Division expressly identified Portuguese-speaking consumers as the relevant public for the purpose of assessing the likelihood of confusion and that that choice, based on the linguistic and territorial scope of the earlier mark, had not been contested by the parties to the opposition proceedings. Accordingly, the applicant submits that the Board of Appeal unilaterally shifted the focus to Polish-speaking consumers, without giving reasons for that change or deciding on the grounds relied on by the Opposition Division.

32 In particular, the applicant criticises the Board of Appeal for failing to substantiate why Polish-speaking consumers should be treated as the relevant public, and not Portuguese-speaking consumers or English-speaking consumers in Ireland or Malta, even though the internal market is characterised by its multilingual and multinational nature and the dispute concerns a mark composed of English-language terms.

33 The applicant maintains, moreover, that the Board of Appeal’s choice to change the relevant public is all the more problematic given that no enhanced distinctiveness of the earlier mark had been established in the Opposition Division’s decision, with the result that, in the absence of such distinctiveness, the signs should have been assessed from the standpoint of their inherent meaning. Thus, according to the applicant, for the Portuguese public, terms like ‘gong’ and ‘cha’ are associated, respectively, with a musical instrument and a dance or informal expression, such that they could have a conceptual meaning that qualifies under the neutralisation principle. The applicant also refers to the argument that the term ‘gotcha’ has a specific and informal meaning in English.

34 Lastly, the applicant also criticises the Board of Appeal for failing to explain why the neutralisation principle would not apply to the Portuguese- or English-speaking public.

35 EUIPO, supported by the intervener, submits that that line of argument is ineffective and, in any event, unfounded.

36 In the present case, it is apparent from paragraphs 25 and 26 of the contested decision that the Board of Appeal found that the goods and services covered by the marks at issue targeted the general public and professionals in the territory of the European Union, whose level of attention varied from average (for the general public) to high (for professionals). Moreover, it follows from paragraph 28 of the contested decision that the Board of Appeal focused its examination on Polish-speaking consumers of the European Union.

37 However, the applicant does not dispute the grounds of the contested decision according to which the goods and services covered by its application were aimed at the general public and professionals whose level of attention would be average for the former and high for the latter. The applicant’s only complaint is that the Board of Appeal identified the relevant public for the purposes of its examination as consisting of Polish-speaking consumers of the European Union.

38 In that connection, it should be recalled that, where the protection of the earlier trade mark extends to the whole 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).

39 According to established case-law, where, as in the present case, one of the earlier marks on which the opposition is founded is an EU trade mark, it is not a requirement of Article 8(1)(b) of Regulation 2017/1001 that, for the mark applied for to be refused registration, the likelihood of confusion must exist in all the Member States and in all the linguistic regions of the European Union. In fact, the unitary character of the EU trade mark means that an earlier EU trade mark can be relied on in opposition proceedings against any application for registration of an EU trade mark which would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (see, to that effect, judgment of 18 September 2008, Armacell v OHIM , C‑514/06 P, not published, EU:C:2008:511, paragraph 57, and judgment of 16 January 2018, Sun Media v EUIPO – Meta4 Spain (METAPORN) , T‑273/16, EU:T:2018:2, paragraph 86 (not published) and the case-law cited).

40 It should be noted that the approach taken by the Board of Appeal in the present case is consistent with the case-law cited in paragraph 39 above, which the Board of Appeal recalled in paragraph 27 of the contested decision.

41 Furthermore, as regards the allegedly inadequate statement of reasons in that connection, while it is true that, in paragraph 28 of the contested decision, the Board of Appeal did not specify the reasons why it identified the relevant public as consisting of Polish-speaking consumers of the European Union, it may be understood, reading that paragraph in conjunction with the previous paragraph, that that choice was made to enable the Board of Appeal to examine the perception of consumers in part of the territory of the European Union in whose mind there may be a likelihood of confusion.

42 Moreover, as regards the applicant’s argument that the Opposition Division had identified Portuguese-speaking consumers as the relevant public for the purpose of assessing the likelihood of confusion in the present case, suffice it to note that, on the contrary, it is apparent from the Opposition Division’s decision that, as the Board of Appeal stated in the fourteenth to sixteenth indents of paragraph 6 of the contested decision, it focused its examination of the likelihood of confusion on the part of the public for which the word element ‘cha’ of the earlier mark and the mark applied for has no meaning, that is to say, the non-Portuguese-speaking and non-English-speaking public of the European Union.

43 In those circumstances, the first part must be rejected as unfounded.

The comparison between the goods in Class 30 and the services in Class 43

44 In that respect, it must be borne in mind that, in assessing the similarity of the goods or services at issue, 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).

45 In the present case, in the context of the second part of the second plea, the applicant claims that the Board of Appeal’s examination of the similarity between the goods in Class 30, covered by the earlier mark, and the services in Class 43, covered by its application, is vitiated by an error of assessment and, therefore, by infringement of Article 72(2) of Regulation 2017/1001 and the legal principles governing the comparison of goods and services. The applicant contests the similarity between the goods covered by the earlier mark, which fall under Class 30, and the services applied for, which fall under Class 43.

46 In doing so, the applicant argues that the Board of Appeal stated that it would not engage in any further examination of the similarity between the goods and services concerned, even though no final finding had been made by the Opposition Division on that issue, and that it had failed to comply with its obligation to examine all relevant facts and arguments raised by the parties.

47 EUIPO, supported by the intervener, submits that that line of argument is ineffective and, in any event, unfounded.

48 In the present case, in the contested decision, the Board of Appeal, by endorsing the assessments in the Opposition Division’s decision, found, in essence, that the goods in Class 30 covered by the mark applied for were identical or highly similar to those in the same class covered by the earlier mark, that the goods in Class 32 covered by the mark applied for were identical to those in the same class covered by the earlier mark and that the services in Class 43 covered by the mark applied for were identical to the services in the same class covered by the earlier mark.

49 In that context, the applicant complains that the Board of Appeal erred in its examination of the similarity between the services in Class 43 covered by the mark applied for, and the goods in Class 30 covered by the earlier mark. It must be held that that complaint is unfounded. As is apparent from paragraph 31 of the contested decision, the Board of Appeal found, first of all, that the Opposition Division had found, in essence, that the goods and services in Classes 30, 32 and 43 covered by the mark applied for were identical or highly similar to the goods and services in the same classes that were covered by the earlier mark. Next, the Board of Appeal stated that it saw no reason to depart from the analysis by the Opposition Division of that issue and, therefore, it expressly endorsed the findings of the Opposition Division. Accordingly, since the Board of Appeal did not engage in any comparison between the services in Class 43 covered by the mark applied for and the goods in Class 30 covered by the earlier mark, it cannot have committed any error of assessment in that connection.

50 In any event, the question whether the goods in Class 30 covered by the earlier mark are similar to the services in Class 43 covered by the mark applied for has no bearing on the Board of Appeal’s finding that those services are identical to the services relating to the provision of food and drink in the same class covered by the earlier mark. Since the Board of Appeal found that the services in Class 43 covered by the marks at issue were identical, it was in no way necessary for it to consider whether there was a possible similarity between the goods in Class 30 covered by the earlier mark and the services in Class 43 covered by the mark applied for, with the result that that argument is ineffective.

51 Lastly, while the Board of Appeal did carry out a different assessment from that of the Opposition Division as regards the similarity of the goods covered by the marks at issue, that difference in assessment lay only in the degree of similarity of certain goods in Class 30 covered by the mark applied for, which the Board of Appeal found to be very similar to teas, beverages made of tea and beverages made from coffee in the same class covered by the earlier mark, contrary to the lower degree of similarity found by the Opposition Division. Accordingly, that different assessment, which the applicant did not dispute, did not concern the services in Class 43 covered by the mark applied for.

52 In those circumstances, the second part must be rejected as unfounded.

The comparison of the signs

53 In that connection, it must be borne in mind that the global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant components. 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).

54 In the present case, the Board of Appeal found that the elements making up the signs at issue were normally distinctive and that those signs were visually similar to an average degree and that the degree of phonetic similarity between those signs was high. As regards the conceptual comparison, the Board of Appeal considered it to be neutral or that the signs were conceptually not similar.

55 In the context of the third part of the second plea, the applicant submits, in essence, that the Board of Appeal committed a manifest error of assessment in the examination of the conceptual similarity, given, first, that it did not take into account the linguistic material that the applicant had submitted and which established that the word ‘gotcha’ is widely understood among English speakers as an informal contraction of ‘got you’, with the result that it carries a clear and specific meaning for the average English-speaking consumer, and for Polish consumers with at least intermediate English proficiency, and, secondly, that the Board of Appeal had acknowledged, in its decision of 11 November 2023 concerning Case R 2539/2022-2, ecobell (fig.) / Ecobull that the level of English-language proficiency in Poland is high.

56 EUIPO, supported by the intervener, submits that that line of argument is unfounded.

57 First of all, it should be noted that the applicant does not dispute the Board of Appeal’s analysis that the word elements making up the signs at issue are normally distinctive and that those signs are visually similar to an average degree and that the degree of phonetic similarity between those signs is high. By contrast, the applicant criticises the Board of Appeal, in the examination of the conceptual similarity of the signs at issue, for failing to find that, on account of the level of English-language proficiency of the relevant public, which is Polish-speaking, the GOTCHA sign would be understood, in a clear and specific manner, as an informal contraction of ‘got you’, with the result that it has a clear and specific meaning for the average English-speaking consumer, and for Polish-speaking consumers with at least intermediate English proficiency.

58 In that connection, it must be borne in mind that, where none of the signs at issue taken as a whole has meaning, it must be held that a conceptual comparison is not possible (see, to that effect, judgments of 21 September 2017, Novartis v EUIPO – Meda (Zymara) , T‑214/15, not published, EU:T:2017:637, paragraph 149, and of 5 October 2017, Forest Pharma v EUIPO – Ipsen Pharma (COLINEB) , T‑36/17, not published, EU:T:2017:690, paragraph 96).

59 By contrast, where one of the marks at issue has a meaning from the perspective of the relevant public and the other mark has no meaning, it must be held that the marks at issue are conceptually dissimilar (see, to that effect, judgment of 19 September 2017, RP Technik v EUIPO – Tecnomarmi (RP ROYAL PALLADIUM) , T‑768/15, not published, EU:T:2017:630, paragraphs 88 and 89).

60 In the present case, the Board of Appeal found, taking into account, as the relevant public, Polish-speaking consumers, first, that the mark applied for was meaningless and, secondly, that the earlier mark as a whole could be regarded as meaningless by part of the relevant public since the word elements which make up the GONG CHA sign are not relevant to the goods and services concerned and, when assembled, create a nonsensical combination, with the result that that part of the relevant public views the earlier sign as a fully abstract compound. Accordingly, the Board of Appeal found that, for part of the relevant public, the conceptual comparison was neutral and could not be carried out and that, as regards that part of the relevant public capable of associating the earlier mark with the name of a musical instrument and with a Polish-language expression used to imitate a person’s laughter (‘cha’), the marks at issue had to be regarded as conceptually not similar.

61 As regards the applicant’s line of argument that the Polish-speaking public is sufficiently proficient in English to identify the meaning of the word ‘gotcha’, it should be noted that knowledge of a foreign language cannot, in general, be assumed (see judgment of 13 September 2010, Inditex v OHIM – Marín Díaz de Cerio (OFTEN) , T‑292/08, EU:T:2010:399, paragraph 83 and the case-law cited; judgment of 26 March 2020, Armani v EUIPO – Asunción (GIORGIO ARMANI le Sac 11) , T‑653/18, not published, EU:T:2020:121, paragraph 85).

62 Accordingly, it is apparent from the case-law that many consumers in the European Union know basic English vocabulary but not other English terms or one of their meanings which cannot be considered to be part of that basic vocabulary (see judgment of 8 July 2020, Pablosky v EUIPO – docPrice (mediFLEX easySTEP) , T‑21/19, EU:T:2020:310, paragraph 71 (not published) and the case-law cited).

63 A term which forms part of the basic vocabulary of the English language could easily be understood by the non-English-speaking part of the relevant public even if that part of the relevant public has only a rudimentary knowledge of English. Similarly, if the English terms have an equivalent in the language of the non-English-speaking public and a link may be established by that public between those terms and their translation into the language concerned, then that public is held to understand their meaning (see, to that effect, judgment of 19 June 2024, Naturgy Energy Group v EUIPO – Global Power Service (gps global power service) , T‑312/23, not published, EU:T:2024:399, paragraphs 36 and 38 and the case-law cited).

64 In the present case, it must be held that the applicant has not demonstrated that the word ‘gotcha’ is part of the basic vocabulary of the English language which a non-English-speaking consumer of the European Union is deemed to know.

65 It is true that the applicant relies on paragraph 51 of the decision of the Board of Appeal of 11 November 2023 on Case R 2539/2022-2, ecobell (fig.) / Ecobull, in which that Board of Appeal found that a study provided by one of the parties at issue in that case classified the general level of English-language proficiency in Poland as ‘very high’.

66 It cannot be inferred from that isolated decision, which the applicant, moreover, did not rely on before the Board of Appeal, that the level of English-language proficiency of the average Polish-speaking consumer is sufficiently high for him or her to understand the meaning of the term ‘gotcha’.

67 It is apparent from the definition given by the applicant in its observations before the Opposition Division and the Board of Appeal, taken from the Collins COBUILD Advanced Learner’s Dictionary , which is aimed, as per its title, at advanced students, that the term ‘gotcha’ is a transcription of the words ‘got you’ when they are pronounced in an informal manner and that it has a very low frequency of use.

68 Furthermore, in its observations both before the Opposition Division and before the Board of Appeal, the applicant stated that the term ‘gotcha’ would be understood to be the abbreviated form of ‘got you’ in EU countries ‘where English is understood, namely Malta and Ireland’, and did not indicate whether that word should be considered as part of the basic vocabulary of the English language, with the result that the population of non-English-speaking Member States such as Poland would be capable of understanding its meaning.

69 Accordingly, the evidence submitted by the applicant is not such as to establish either that the term ‘gotcha’, which is infrequently used, forms part of the basic vocabulary of the English language, or that a non-negligible part of the relevant Polish-speaking public has a sufficient level of English-language proficiency to know the meaning of that term.

70 It follows that the applicant is not justified in submitting that the Board of Appeal vitiated the contested decision through a manifest error of assessment by finding that the mark applied for was meaningless. Accordingly, its arguments do not call into question the conceptual comparison of the signs at issue carried out by the Board of Appeal and recalled in paragraph 54 above.

71 In those circumstances, the third part must be rejected as unfounded.

The likelihood of confusion

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

73 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).

74 The Board of Appeal found that, taking into account the fact that the elements making up the signs at issue were visually similar to an average degree and phonetically similar to a high degree, and that the goods covered by the marks at issue were identical or highly similar, there could be a likelihood of confusion on the part of the relevant public. In particular, contrary to the Opposition Division, the Board of Appeal found that the conceptual differences between the signs at issue were not sufficient to neutralise their visual and phonetic similarities in so far as, in the present case, the earlier sign GONG CHA combines two words which, put together, do not convey any clear and obvious meaning.

75 In the context of the fourth part of the second plea, first of all, the applicant submits that the contested decision is vitiated by an error of law on account of an application of the neutralisation principle which infringes Article 8(1)(b) and Article 72(2) of Regulation 2017/1001, as interpreted by the case-law. In particular, the applicant calls for the application of the judgment of 15 March 2007, T.I.M.E. ART v OHIM (C‑171/06 P, not published, EU:C:2007:171), on the ground that the sign applied for, GOTCHA, has, in the mind of the relevant English-speaking public or relevant public with a sufficient knowledge of English, a clear and specific meaning, such that the relevant public may immediately grasp a conceptual distinction that may counteract the visual and phonetic similarities between the marks at issue.

76 Furthermore, the applicant claims that the Board of Appeal erred in law by introducing a new and unfounded criterion into the assessment of the neutralisation principle, namely that conceptual differences must reach a certain undefined level of ‘sufficiency’ to counteract visual and phonetic similarities. The applicant argues that, in doing so, the Board of Appeal infringed Article 8(1)(b) and Article 72(2) of Regulation 2017/1001.

77 More specifically, the applicant complains that the Board of Appeal found that the differences between the signs at issue were not sufficient to offset the visual and phonetic similarities found, whereas the case-law does not require any threshold for that purpose and that, on the contrary, neutralisation is, in theory, applicable where one of the signs has a clear and specific meaning likely to be understood immediately by the relevant public.

78 According to the applicant, the Board of Appeal thus exceeded its discretion and acted in breach of the principles of legal certainty and fair treatment, since the applicant could not reasonably anticipate that a higher, undefined threshold would now be applied to conceptual neutralisation.

79 EUIPO, supported by the intervener, submits that that line of argument is unfounded.

80 In that connection, case-law shows that the global assessment of the likelihood of confusion implies that conceptual differences between two signs may counteract phonetic and visual similarities between them, provided that at least one of those signs has, from the point of view of the relevant public, a clear and specific meaning, so that the public is capable of grasping it immediately (judgments of 18 December 2008, Les Éditions Albert René v OHIM , C‑16/06 P, EU:C:2008:739, paragraph 98, and of 14 October 2003, Phillips-Van Heusen v OHIM – Pash Textilvertrieb und Einzelhandel (BASS) , T‑292/01, EU:T:2003:264, paragraph 54).

81 In the present case, the Board of Appeal found that it could not apply the principles of the case-law referred to in paragraph 80 above, on the grounds that, first, the mark applied for was meaningless and that, secondly, the word elements ‘gong cha’ did not convey any clear and obvious meaning. The Board of Appeal stated that it was a combination of two words which, put together, did not convey any meaning, with the result that the earlier mark did not have a clear and specific meaning capable of being understood directly by the relevant public.

82 First, it follows from paragraphs 43 and 70 above that, by focusing its examination on Polish-speaking consumers of the European Union and by finding that, for at least a non-negligible part of that relevant public, the mark applied for was meaningless, the Board of Appeal did not render the contested decision unlawful.

83 Consequently, the applicant is not justified in claiming that the term ‘gotcha’ should be recognised as having a clear, specific and directly comprehensible meaning for the relevant public, within the meaning and for the application of the case-law cited in paragraph 80 above.

84 Secondly, the applicant has not established or even claimed that the Board of Appeal should have recognised the earlier mark GONG CHA as having a meaning that was clear, specific and directly comprehensible for the relevant public, within the meaning and for the application of the case-law cited in paragraph 80 above.

85 Lastly, it is not apparent from paragraph 70 of the contested decision that the Board of Appeal defined a threshold beyond which a sign could be recognised as having a meaning that is clear, specific and directly comprehensible for the relevant public. By stating that the conceptual differences were not sufficient to neutralise the visual and phonetic similarities between the signs at issue, the Board of Appeal merely drew the appropriate conclusions from the finding that, first, the mark applied for was meaningless and, secondly, the earlier mark did not have a meaning that was clear, specific and directly comprehensible for the relevant public.

86 In those circumstances, the applicant’s arguments do not call into question the global assessment of the likelihood of confusion carried out by the Board of Appeal as referred to in paragraphs 74 and 81 above, with the result that the fourth part must be rejected as unfounded.

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

Costs

88 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.

89 Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the intervener. By contrast, since EUIPO has requested that the applicant be ordered to pay the costs only in the event that a hearing is convened, EUIPO must be ordered to bear its own costs, since no hearing was organised.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1. Dismisses the action;

2. Orders CFL Australia Pty Ltd to bear its own costs and to pay those incurred by Gong cha Global Ltd;

3. Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.

Delivered in open court in Luxembourg on 9 September 2026.

* Language of the case: English.