Judgment of the General Court (First Chamber) 16 September 2026

JUDGMENT OF THE GENERAL COURT (First Chamber)

16 September 2026 ( * )

( EU trade mark – Opposition proceedings – Application for the EU word mark KROMAT – Earlier EU word mark CROMA – Technical issue during the production of evidence by one of the parties – Reopening of the proceedings – Audi alteram partem rule – Second sentence of Article 94(1) of Regulation (EU) 2017/1001 – Probative value of the evidence of genuine use of the earlier mark – Article 47(2) of Regulation 2017/1001 – Relative ground for refusal – Article 8(1)(b) of Regulation 2017/1001 )

In Case T‑467/25,

Absara Industrial, SL, established in San Juan de Moró (Spain), represented by M.C. March Cabrelles, lawyer,

applicant,

v

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

defendant,

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

Hansgrohe SE, established in Schiltach (Germany),

THE GENERAL COURT (First Chamber),

composed of E. Buttigieg, President, M. Kancheva (Rapporteur) and F. Bestagno, Judges,

Registrar: J. Čuboň, administrator,

having regard to the written part of the procedure,

further to the hearing on 20 May 2026,

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, Absara Industrial, SL, seeks the annulment and, in essence, the alteration of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 May 2025 (Case R 22/2024-2) (‘the contested decision’).

I. Background to the dispute

2 On 18 August 2020, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the word sign KROMAT.

3 The mark applied for covered goods, inter alia, in Class 11 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding, inter alia, to the following description: ‘Bathroom installations; sanitary installations; fittings for sanitary purposes; sanitary apparatus and installations; bath fittings; shower bath installations; shower installations; showers; shower pans; shower platforms; shower cubicles; shower fittings; shower screens; shower doors; shower apparatus; shower units; pre-assembled multifunction showers; fitted liners for shower trays; showers for sale in kit form; shower baths; shower valves; walls for shower cubicles; bath tubs; bath screens; bath cubicles; bath linings; wall-mounted spouts for baths; shower mixing valves; taps; bathtub enclosures; tub overflows; valves [plumbing fittings]; water control valves.’

4 On 17 December 2020, the other party to the proceedings before EUIPO, Hansgrohe SE, filed a notice of opposition to registration of the mark applied for inter alia in respect of the goods referred to in paragraph 3 above.

5 The opposition was based on the earlier word mark CROMA, covering goods, inter alia, in Class 11 corresponding to the following description: ‘Lighting, water supply and sanitary installations; installations for heating water; mixing valves being parts of sanitary installations, water supply and water outlet fittings with manual and automatic controls; taps for washstands, bidets and sinks, taps for tubs and showers; sanitary tubs and basins, bath tubs, shower trays, whirlpool tubs, urinals, bidets, shower systems and shower cubicles; shower combinations, shower sets with attachments, multi-function shower cubicles; preassembled multifunction showers; showers and shower fittings, shower mounts, shower combinations, body showers, overhead showers, lateral-jet showers, flexible tubes for showers, spray nozzles and water jet aerators being parts of sanitary installations, showers and baths; intake and outlet fittings for sanitary basins, washstands, sinks, bidets, bath tubs and shower trays; siphons (traps), pipes for supplying and removing water, water-pipe fittings of metal being parts for sanitary installations; plug-in couplings, not of metal, for connecting flexible pipes and fittings for water pipes; parts of the aforesaid goods.’

6 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).

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

8 On 7 November 2023, the Opposition Division upheld the opposition in part in respect of some of the goods covered by the mark applied for.

9 On 5 January 2024, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision in so far as it had upheld the opposition.

10 By the contested decision, the Board of Appeal upheld the appeal in part. First of all, it confirmed that genuine use had been made of the earlier mark solely in respect of the sub-category ‘sanitary facilities, namely shower heads, pipe showers’. Next, it found that the goods covered by the earlier mark either were identical to or had a degree of similarity – varying from average to high – to the goods covered by the mark applied for. The Board of Appeal also found, in essence, that the relevant public comprised both the public at large and professionals with a high level of attention. Given the fact that the marks at issue, CROMA and KROMAT, were most closely connected in the Catalan language, in which those marks evoked the words ‘crom’ and ‘cromat’, meaning ‘chrome’ or ‘chromed’, the Board of Appeal decided to confine its analysis to the Catalan-speaking public. It considered that the marks at issue had, in essence, a low degree of inherent distinctiveness, since they referred to the descriptive characteristic of ‘chrome’ and the goods at issue often had a chrome-plated appearance. The Board of Appeal found that the marks at issue were, in essence, visually and phonetically similar to a high degree, while they were conceptually similar to an average degree. Lastly, having regard to the high level of attention of the relevant public, the Board of Appeal found that there was a likelihood of confusion solely in relation to the goods referred to in paragraph 3 above, which were regarded as identical, or similar to a high degree, to ‘sanitary facilities, namely shower heads, pipe showers’ covered by the earlier mark.

II. Forms of order sought

11 The applicant claims, in essence, that the Court should:

– annul the contested decision in so far as the trade mark application was rejected as regards the goods referred to in paragraph 3 above;

– order EUIPO to allow registration of the mark applied for as regards all the goods in respect of which the application was filed;

– order EUIPO to pay the costs.

12 EUIPO contends that the Court should annul the contested decision.

III. Law

A. The Court’s jurisdiction to take cognisance of the applicant’s second head of claim

13 EUIPO contends that the applicant’s head of claim requesting that the Court order it to allow registration of the mark applied for as regards all the goods in respect of which the application was filed is inadmissible in so far as that head of claim asks the Court to issue a direction to it.

14 At the hearing, the applicant clarified that, by its second head of claim, it was asking the Court to alter the contested decision by finding there to be no likelihood of confusion between the marks at issue as regards all the goods in respect of which the mark applied for had been filed.

15 Consequently, since the applicant clarified at the hearing that, by its second head of claim, it was asking the Court to alter the contested decision, within the meaning of Article 72(3) of Regulation 2017/1001, by adopting the decision that the Board of Appeal should have taken, namely by finding there to be no likelihood of confusion between the marks at issue, in accordance with the provisions of that regulation, it is necessary to reject EUIPO’s line of argument, summarised in paragraph 13 above, and subsequently to ascertain whether the conditions for making the alteration requested have been met in the present case, a point which EUIPO disputes.

B. Substance

16 In support of its action, the applicant puts forward, in essence, three pleas in law, alleging, first, infringement of Article 10(7) 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), second, infringement of Article 47(2) of Regulation 2017/1001 and, third, infringement of Article 8(1)(b) of that regulation.

1. The application for annulment of the contested decision

(a) The first plea in law, alleging infringement of Article 10 (7) of Delegated Regulation 2018/625

17 The applicant submits, in essence, that the other party to the proceedings before EUIPO produced Annexes II, IV, V and VI before the Opposition Division after the expiry of the time limit initially specified, without any explanation, and that the Opposition Division, and subsequently the Board of Appeal, accepted that on the pretext of an unproven technical problem and on the basis of an index that was filed initially and listed the evidence, including the missing annexes. The applicant complains that the Board of Appeal adopted a new interpretation of its discretionary power to accept new documents, according to which the submission of a list of items of evidence is an acceptable way of complying with the time limit specified in accordance with Article 10(2) of Delegated Regulation 2018/625, thus making it possible to file out of time documents mentioned on that list. According to the applicant, that interpretation is contrary to the case-law and alters the legal obligation set out in Article 47 of Regulation 2017/1001.

18 EUIPO disputes the applicant’s arguments.

19 In the contested decision, the Board of Appeal stated, in essence, that the other party to the proceedings before EUIPO had produced within the time limit initially specified evidence of genuine use of the earlier mark, along with an index listing Annexes I to VI and describing their content (including the type of document and the number of pages).

20 The Board of Appeal also noted that, in its observations on the evidence produced before the Opposition Division by the other party to the proceedings before EUIPO, the applicant commented on Annexes I and III and stated that it had not received Annexes II, IV, V and VI, listed in the index, and that all the evidence was resubmitted by the other party to the proceedings before EUIPO in response to those comments.

21 The Board of Appeal also stated that the Opposition Division had considered, in the light of the index of annexes which described the type of document and number of pages of each annex, and given that Annexes II, IV, V and VI, produced subsequently, corresponded to their description in that index, that those annexes had been submitted within the time limit specified and that it was likely that a technical issue was the cause of the applicant’s not having received all the annexes. The Board of Appeal added that it was for that reason that the Opposition Division had decided to reopen the proceedings and to give the applicant the opportunity to submit its observations in respect of all the annexes produced by the other party to the proceedings before EUIPO. The Board of Appeal noted that the Opposition Division had consequently concluded that the opponent had submitted all the evidence within the time limit initially specified and that the applicant’s claim in that regard had to be dismissed.

22 The Board of Appeal stated that it agreed with the Opposition Division’s findings and that, in any event, the Opposition Division had rightly exercised its discretion under Article 10(7) of Delegated Regulation 2018/625, read in conjunction with Article 95(2) of Regulation 2017/1001. The Board of Appeal considered that the additional annexes supplemented the annexes that had been submitted within the time limit for proving use of the earlier mark. It found, first of all, that the annexes initially submitted already included an affidavit and a breakdown of sales in each country of the European Union between 2016 and 2021, which showed significant turnover figures, along with photographs of the packaging of goods covered by the earlier mark. Next, the additional evidence had been expressly referenced in the initial index, thereby demonstrating that it had always been intended to be part of the overall submission. It added that that evidence was likely to be relevant to the outcome of the case and that the existence of the alleged technical issue constituted, in light of the other circumstances of the case, a valid reason for the late submission of that evidence. Lastly, the Board of Appeal recalled that, in any event, the Opposition Division had reopened the proceedings in order to give the applicant the opportunity to submit its observations in response to all the documents submitted at that later stage by the other party to the proceedings before EUIPO and that it had thus guaranteed the right of the applicant to be heard in relation to that evidence. The Board of Appeal concluded on that basis that the evidence submitted after the time limit initially specified was to be accepted as supplementary evidence.

23 In the first place, it must be observed that, since the index of annexes produced within the time limit initially specified referred to Annexes II, IV, V and VI, as well as the content and number of pages thereof, and since those annexes, produced later, corresponded to the description given of them in the index, the Board of Appeal was right to find, in essence, that the Opposition Division had correctly regarded it as plausible that the applicant’s failure to receive the annexes in question was due to a technical issue and, in those circumstances, had reopened the proceedings in order to give the applicant the opportunity to submit its observations on those annexes, which had been sent after the time limit, thus guaranteeing the right of the applicant to be heard in relation to those annexes.

24 In the second place, even assuming – as the applicant suggests by maintaining that that technical issue had not been established – that the applicant’s initial failure to receive Annexes II, IV, V and VI was due not to a technical issue but to an omission on the part of the other party to the proceedings before EUIPO, it must be observed that the Board of Appeal considered that, in any event, the Opposition Division had rightly exercised its discretion under Article 10(7) of Delegated Regulation 2018/625, read in conjunction with Article 95(2) of Regulation 2017/1001.

25 In that respect, it should be borne in mind that, in accordance with Article 10(7) of Delegated Regulation 2018/625, where, after the expiry of the time limit specified by EUIPO, indications or evidence that supplement relevant indications or evidence already submitted before expiry of that time limit are submitted, EUIPO may take into account the evidence submitted out of time, by virtue of its discretion under Article 95(2) of Regulation 2017/1001. When exercising that discretion, EUIPO is to take into account, in particular, the stage of proceedings, whether the facts or evidence are, prima facie, likely to be relevant for the outcome of the case and whether there are valid reasons for the late submission of the facts or evidence.

26 It is clear from the contested decision, as presented in paragraph 22 above, that, although the Board of Appeal admittedly stated that the fact that the other party to the proceedings before EUIPO had provided, within the time limit specified, an index referring to Annexes II, IV, V and VI demonstrated that those annexes were part of that party’s initial submission, it was, in essence, the conclusions which it drew from the fact that those annexes supplemented the annexes received by the applicant within the time limit initially specified and that they were likely to be relevant to the outcome of the case that enabled the Board of Appeal to justify the possible late submission of that evidence.

27 Therefore, the applicant is mistaken in complaining that the Board of Appeal adopted a new interpretation of its discretionary power to accept new documents, according to which the submission of a list of items of evidence is an acceptable way of complying with the time limit specified in accordance with Article 10(2) of Delegated Regulation 2018/625.

28 Accordingly, the Board of Appeal made no error of assessment in considering that the Opposition Division had rightly admitted the additional evidence produced by the other party to the proceedings before EUIPO.

29 It follows that the first plea in law must be rejected.

(b) The second plea in law, alleging infringement of Article 47 (2) of Regulation 2017/1001

30 The applicant submits that the Board of Appeal infringed Article 47(2) of Regulation 2017/1001 on the ground that, contrary to its finding, the evidence produced by the other party to the proceedings before EUIPO with a view to establishing genuine use of the earlier mark is inadequate and proves neither frequency of use nor continuous use, nor outward use of the mark with sufficient volume. In addition to the paucity of that evidence, none of it comes from independent sources such that the accuracy of the information it contained could be verified. It maintains that the other party to the proceedings before EUIPO thus failed to furnish, as is required by the case-law and in particular by the judgment of 18 January 2011, Advance Magazine Publishers v OHIM – Capela & Irmãos (VOGUE) (T‑382/08, not published, EU:T:2011:9, paragraph 22), solid and objective evidence of effective and sufficient use of the trade mark on the market concerned.

31 EUIPO disputes the applicant’s arguments.

32 According to Article 47(2) of Regulation 2017/1001, if the applicant so requests, the proprietor of an earlier EU trade mark that has given notice of opposition is to furnish proof that, during the five-year period preceding the date of filing or the date of priority of the EU trade mark application, the earlier EU trade mark has been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered and which it cites as justification for its opposition, or that there are proper reasons for non-use, provided that the earlier EU trade mark has at that date been registered for not less than five years. In the absence of proof to this effect, the opposition is to be rejected. If the earlier EU trade mark has been used in relation to only part of the goods or services for which it is registered, it is, for the purposes of the examination of the opposition, to be deemed to be registered in respect only of that part of the goods or services.

33 In interpreting the concept of genuine use, it must be borne in mind that there is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Moreover, the condition relating to genuine use of the trade mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (see judgment of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT) , T‑203/02, EU:T:2004:225, paragraph 39 and the case-law cited).

34 When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial use of the mark is real, particularly the practices regarded as warranted in the relevant economic sector as a means of maintaining or creating market shares for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark (see judgment of 8 July 2004, VITAFRUIT , T‑203/02, EU:T:2004:225, paragraph 40 and the case-law cited).

35 As to the extent of the use to which the earlier trade mark has been put, account must be taken, in particular, of the commercial volume of the overall use, as well as of the length of the period during which the mark was used and the frequency of use (judgments of 8 July 2004, MFE Marienfelde v OHIM – Vétoquinol (HIPOVITON) , T‑334/01, EU:T:2004:223, paragraph 35, and of 8 July 2004, VITAFRUIT , T‑203/02, EU:T:2004:225, paragraph 41). It should also be pointed out that what is required is not use throughout the entire period of five years, but during a period long enough to establish that such use is genuine (judgment of 16 November 2011, Buffalo Milke Automotive Polishing Products v OHIM – Werner & Mertz (BUFFALO MILKE Automotive Polishing Products) , T‑308/06, EU:T:2011:675, paragraph 74).

36 In order to examine, in a particular case, whether an earlier trade mark has been put to genuine use, a global assessment must be carried out, which takes into account all the relevant factors of the particular case. That assessment entails a degree of interdependence between the factors taken into account. Thus, a low volume of goods marketed under the trade mark may be compensated for by a high intensity of use or a period of very regular use of that trade mark and vice versa (judgments of 8 July 2004, HIPOVITON , T‑334/01, EU:T:2004:223, paragraph 36, and of 8 July 2004, VITAFRUIT , T‑203/02, EU:T:2004:225, paragraph 42).

37 The turnover and the volume of sales of the goods under the earlier trade mark cannot be assessed in absolute terms but must be looked at in relation to other relevant factors, such as the volume of business, production or marketing capacity or the degree of diversification of the undertaking using the trade mark and the characteristics of the goods or services in the relevant market. As a result, use of the earlier mark need not always be quantitatively significant in order to be deemed genuine (judgments of 8 July 2004, HIPOVITON , T‑334/01, EU:T:2004:223, paragraph 36, and of 8 July 2004, VITAFRUIT , T‑203/02, EU:T:2004:225, paragraph 42). Even minimal use can therefore be sufficient to be classified as genuine, provided that it is regarded as warranted, in the relevant economic sector, as a means of maintaining or creating market shares for the goods or services protected by the mark. It follows that it is not possible to determine a priori, and in the abstract, what quantitative threshold should be chosen in order to determine whether the use was genuine or not, so that a de minimis rule, which would not allow EUIPO or, following the bringing of an action, the Court, to appraise all the circumstances of the dispute before it, cannot be laid down (see judgment of 11 May 2006, Sunrider v OHIM , C‑416/04 P, EU:C:2006:310, paragraph 72 and the case-law cited).

38 Genuine use of a trade mark cannot be proved by means of probabilities or presumptions, but must be demonstrated by solid and objective evidence of actual and sufficient use of the trade mark on the market concerned (judgments of 12 December 2002, Kabushiki Kaisha Fernandes v OHIM – Harrison (HIWATT) , T‑39/01, EU:T:2002:316, paragraph 47, and of 6 October 2004, Vitakraft-Werke Wührmann v OHIM – Krafft (VITAKRAFT) , T‑356/02, EU:T:2004:292, paragraph 28).

39 In the present case, in order to establish genuine use of the earlier mark, the other party to the proceedings before EUIPO produced the following evidence:

– Annex I: an affidavit of the manager of intellectual property rights of the other party to the proceedings before EUIPO, dated 11 February 2022. It states that the mark at issue has been used since 1995 in relation to showers and shower systems. The document provides the annual sales figures for the period 2016 to 2021 relating to the European Union (Annexes A and B.1 to B.6);

– Annex II: six invoices issued by the other party to the proceedings before EUIPO between 2016 and 2021 to clients located in Belgium, the Czech Republic, Germany and France. The trade mark CROMA appears on all the invoices together with other words, for example ‘Showerpipe’, ‘Select’ or ‘Multi green’. The amounts are in euros and Czech koruna. The quantities of goods sold and the amounts are clearly shown. The languages of the invoices are Czech, French and German;

– Annex III: photographs of the packaging of goods such as a shower head and hand shower, showing the trade mark;

– Annexes IV to VI: selected pages of a catalogue, a sales manual and a brochure dated 2016-2017, 2017 and 2018, respectively. They bear the name ‘Hansgrohe’ and the date on the right-hand side of the last page. They contain information (in English) about the range of showers of the other party to the proceedings before EUIPO (including shower sets and shower pipes) and the reference numbers and bar codes identifying each of them. The article codes (for example, 26592-400 or 26563-400) shown in some of the images coincide with those indicated in the invoices (for example, 26592-400 Croma Select E Vario or 26563-400 Croma Select S Vario EcoSmart).

40 First of all, as regards the time and place of use, the Board of Appeal found that the other party to the proceedings before EUIPO had proved use of the earlier mark during the five-year period preceding the date of the application for registration of the mark applied for, that is to say from 18 August 2015 to 17 August 2020 (‘the relevant period’) in the relevant territory of the European Union, inter alia in Belgium, France, Germany and the Czech Republic. The Board of Appeal based its assessment on the six invoices showing sales over a period of six years to those countries, and on sales catalogues (2016-2017), a sales manual (2017) and a promotional brochure (2018).

41 Next, as regards the extent of use, the Board of Appeal agreed with the finding that the affidavit, together with the six invoices, referred to the sale of goods bearing the earlier mark and provided sufficient information concerning the commercial volume, the duration and the frequency of use of the earlier mark. The Board of Appeal concluded that the invoices demonstrated use that, quantitatively speaking, was not merely token, minimal or notional for the sole purpose of preserving the rights conferred by the earlier mark. The Board of Appeal rejected the argument that the evidence was insufficient and, inter alia, that volumes were low, which, according to the applicant, was apparent from those invoices, and stated that, where, as in the present case, the numbering of the invoices is far apart and follows an ascending chronological order, the invoices are to be seen as merely illustrative of the business activity. According to the Board of Appeal, the quantities and turnover figures set out in those invoices are sufficient for the purpose of considering the extent of use to be proved, as is also confirmed by the sales catalogues, user manuals and brochures, as well as by the annual sales figures in connection with the affidavit.

42 Lastly, as regards the nature of the use, the Board of Appeal considered, first, with regard to use as a trade mark in the course of trade, that most of the evidence showed use of the word sign CROMA, which appears systematically throughout the evidence; the evidence of its use is also reflected in the invoices which refer to products (showers and shower heads) shown in the sales catalogues or promotional brochures. Therefore, in its view, the earlier sign has been used commonly as a trade mark, indicating the commercial origin of the goods in question. Second, regarding use of the mark as registered, the Board of Appeal found, in essence, that the evidence showed use of the sign that was sufficient to prove a minimum use of the earlier word mark as registered. According to the Board of Appeal, in essence, the use of the earlier mark together with descriptive elements, such as ‘HG Showerpipe Croma 220’, ‘HG douchette Croma 100’ or ‘HG Croma 100 Multi Green/Unica’, or with the house mark Hansgrohe or the initials HG, cannot divert attention from the word element ‘croma’. Consequently, use of the mark as registered or in a form that did not alter its distinctive character had been proved. Third, as regards use in connection with the goods in respect of which the earlier mark had been registered, the Board of Appeal found, in essence, that the evidence showed genuine use solely in relation to ‘shower heads and pipe showers’, which, contrary to the applicant’s submissions, cannot be regarded as a mere sub-category of plumbing fittings, even if they can be used with or connected to such fittings, but rather constitute an objective sub-category of ‘sanitary facilities’, in Class 11, given that they are complex products the primary function of which is to deliver water to the user for showering, providing both temperature and flow control.

43 In essence, the applicant disputes generally the probative value of the evidence and, in particular, the assessments regarding the extent of the use of the earlier mark.

44 In that respect, first of all, the applicant submits that the affidavit sworn by a member of the managerial staff (Annex I) is not corroborated by any other document from an objective source, as in the case which gave rise to the judgment of 11 June 2025, Nio v EUIPO – Audi (ES8) (T‑593/23, not published, EU:T:2025:587), and that the evidential value of that affidavit is therefore limited. Similarly, the information given in that affidavit is vague and unrelated to the situation of the earlier trade mark in the market for end consumers. In addition, it maintains that the annual turnover figures do not specify whether they relate to Hansgrohe’s sales in general or to the specific goods sold under the earlier trade mark. The applicant submits that there is no logical connection between the affidavit, the turnover figures and the other items of evidence.

45 Next, according to the applicant, the six invoices (Annex II), drawn up between the producer and intermediaries and not accompanied by additional evidence showing that the goods reached end consumers, as in the case which gave rise to the judgment of 18 January 2011, VOGUE (T‑382/08, not published, EU:T:2011:9), are not sufficient to establish genuine use, since that evidence does not show any volume of sales of the goods covered by the earlier mark to end consumers. Similarly, no information was provided about actual sales of the goods to those intermediaries, in order to determine whether those goods were in fact placed on the market or were stored in the warehouses of those resellers. Moreover, it argues that there is nothing to prove that the intermediaries did not purchase and store the goods solely to comply with requirements to purchase minimum quantities imposed by a distribution agreement. The applicant maintains that the six invoices indicate very sporadic use and show a low volume of sales taking into account the nature of the goods, which does not reflect sales of an intensity and frequency sufficient to be regarded as constituting effective use. The applicant states that it is clear from the case-law that a minimum presence in the market is required in order to preserve market share and to be characterised as ‘use’. That ‘minimum’ may vary depending on the type of product and the type of market. However, since shower heads and pipe showers are not expensive (less than EUR 100), the sales volumes shown in the invoices for a period of six years are anecdotal (fewer than 250 units sold in France, 93 units sold in Germany, 18 units sold in the Czech Republic) and do not demonstrate either effective use of the mark or its presence in the market. It submits that genuine use has therefore not been proved.

46 Lastly, the applicant argues that some of the Board of Appeal’s conclusions are based on presumptions and probabilities, in the absence of actual information. However, according to the case-law, genuine use of a trade mark cannot be proved by means of probabilities or presumptions. It submits that the evidence does not therefore meet the minimum standard required for finding that the earlier mark has been put to genuine use.

47 EUIPO disputes the applicant’s arguments.

48 In that regard, in the first place, as regards the arguments concerning the evidence intended to establish genuine use, it must be borne in mind, with reference to the question of the adequacy of the volumes of sales and quantities referred to in the six invoices, that the ratio legis of the requirement that the earlier mark must have been put to genuine use is not to assess commercial success or to review the economic strategy of an undertaking, nor is it to restrict trade-mark protection to the case where large-scale commercial use has been made of the marks (see judgments of 8 July 2004, HIPOVITON , T‑334/01, EU:T:2004:223, paragraph 32 and the case-law cited, and of 27 September 2007, La Mer Technology v OHIM – Laboratoires Goëmar (LA MER) , T‑418/03, not published, EU:T:2007:299, paragraph 53 and the case-law cited).

49 In the present case, it must be held, as the Board of Appeal found in paragraph 62 of the contested decision, that the sales volumes indicated in the invoices, namely 526 shower heads and pipe shower kits sold under the six invoices produced, are adequate in order for the extent of use to be considered sufficient. Moreover, the invoices were issued between 2016 and 2021 and therefore cover almost the entirety of the relevant period, which demonstrates a certain regularity of use of the earlier mark over time. Furthermore, the fact that the six invoices were addressed to six separate entities located in various regions of the relevant territory suggests a geographically diverse and sustained pattern of use.

50 It must therefore be held, having regard to the case-law cited in paragraphs 36, 37 and 48 above, that the Board of Appeal was correct in considering that, taken together, the invoices submitted by the other party to the proceedings before EUIPO demonstrated more than token use of the earlier mark. It was also correct in finding that that conclusion was confirmed by other items of evidence, such as the catalogues featuring goods sold under the earlier mark, user manuals and brochures, as well as the annual sales figures in connection with the affidavit, and that, consequently, in essence, the extent of use had been demonstrated.

51 That conclusion is not called into question by the applicant’s other arguments.

52 First, as regards the argument concerning the evidential value of the affidavit, it must be borne in mind that, where a statement has been drawn up for the purposes of Article 97(1)(f) of Regulation 2017/1001 by one of the executives of the party concerned, evidential value can be attributed to that statement only if it is supported by other evidence. A statement drawn up in the interests of its author has only limited evidential value and must be supported by additional evidence, even though that does not, however, allow the adjudicating bodies of EUIPO to conclude as a matter of principle that such a statement is, in itself, devoid of any credibility. The evidential value of such a statement, taken in isolation or in conjunction with other evidence, depends, inter alia, on the circumstances of the case (see judgment of 28 June 2023, CEDC International v EUIPO – Underberg (Shape of a blade of grass in a bottle) , T‑145/22, EU:T:2023:365, paragraph 84 and the case-law cited).

53 In the present case, the affidavit in question cannot be regarded as having no evidential value solely on the ground that it was sworn not by a third party but by a person with close ties to the other party to the proceedings before EUIPO. That affidavit constitutes evidence of use that is supported by other evidence the impartiality or credibility of which need not be called into question. Indeed, the affidavit is supported by information relating to significant turnover figures, by year and by EU Member State, during the relevant period and the year following that period. The use of the earlier mark is also borne out by the six invoices provided by the applicant. The promotional and sales evidence also attests to the efforts made to use the earlier mark as such, publicly and outwardly, in accordance with its primary function of identifying the commercial origin of the goods. Thus, the invoices and the items of evidence relating to the promotion and sale of ‘shower heads and pipe showers’ render the affidavit credible (see, to that effect, judgment of 3 October 2019, 6Minutes Media v EUIPO – ad pepper media International (ad pepper) , T‑666/18, not published, EU:T:2019:720, paragraphs 89, 90 and 92).

54 In those circumstances, the Board of Appeal did not err in taking the affidavit in question into account in its overall analysis of the documents produced in order to demonstrate genuine use of the earlier mark.

55 Second, as regards the applicant’s line of argument claiming that it is unclear whether the turnover figures relate to the business of the other party to the proceedings before EUIPO or to the sale of goods under the trade mark CROMA, it must be observed that it is clear from the affidavit that the earlier mark has been used since 1995 and that the significant turnover figures attest to its success, as described in the affidavit. Given that that affidavit is rendered credible by the other items of evidence, as was stated in paragraphs 53 and 54 above, the argument disputing the connection between the turnover figures and the earlier mark must be rejected as unfounded.

56 Third, as regards the overall logical connection between the items of evidence, it must be observed that the affidavit is supported by the annual sales figures and that, moreover, the product codes identified in those invoices are identical to the codes for certain products appearing in the pages of the catalogues, the sales manuals and the promotional brochure. Thus, the connection between the items of evidence is clear, given that those items concern the same earlier mark, relate to the same period and refer to the same goods, which is sufficient for the items of evidence to be regarded as connected. Accordingly, it must be held that the direct connection between the items of evidence in the context of the present case has been sufficiently established.

57 In the second place, as regards the question whether the earlier mark has been used publicly and outwardly, the applicant’s argument that it has not been established that the goods sold under the earlier mark reached end consumers must be rejected, without it being necessary to rule on the admissibility of Annex A.11, submitted for the first time before the General Court, by which the applicant seeks to establish that the invoices produced by the other party to the proceedings before EUIPO were addressed solely to large resellers and not to end customers.

58 In contrast to the case that gave rise to the judgment of 18 January 2011, VOGUE (T‑382/08, not published, EU:T:2011:9, paragraph 50), cited by the applicant, in the present case, information was submitted regarding turnover figures which enabled an assessment to be made of the intensity of use and of the volumes of sales of the goods covered by the earlier mark. Given the scale of those figures, coming to tens of millions of euros, it must be regarded as established that the goods covered by the earlier mark reached end consumers.

59 Moreover, it must be held, as EUIPO found, that outward use of a trade mark does not necessarily mean use aimed at end consumers, even if they are the users of the goods in question. The intermediaries that are the recipients of the invoices produced in order to establish genuine use of the earlier mark of the other party to the proceedings before EUIPO are entities independent of that party and they exist through the resale of the goods with which they deal.

60 In that sense, the very idea that intermediaries would purchase goods solely to comply with a distribution agreement is entirely at odds with the way in which those entities operate. Similarly, given the scale of the turnover figures, such a hypothesis is implausible. Moreover, the applicant does not substantiate its reasoning or explain why a reseller would wish to comply with such an agreement rather than terminate it, if the goods are not selling and additionally require storage, entailing additional costs. Nevertheless, even if that were the case, genuine use of a mark relates to the market on which the proprietor of the EU trade mark pursues its commercial activities and on which it hopes to put its mark to use.

61 Accordingly, taking the view that outward use of a mark, within the meaning of the case-law, must consist of use aimed at end consumers would effectively mean that marks used only in inter-corporate relations cannot enjoy the protection of Regulation 2017/1001. The relevant public to which marks are addressed does not comprise only end consumers, but also specialists, industrial customers and other professional users, in particular resellers (see, to that effect, judgment of 3 October 2019, ad pepper , T‑666/18, not published, EU:T:2019:720, paragraph 80 and the case-law cited).

62 Therefore, it must be held that, in the present case, the distributors of the goods at issue form an integral part of the relevant public, in this instance, the professional part of that public. Consequently, the applicant’s argument must be rejected as unfounded.

63 In the third place, in so far as concerns the criticisms regarding reliance on presumptions and probabilities in paragraphs 62 and 63 of the contested decision, it must be stated that, in the context of the present case and, in particular, following the finding that the six invoices submitted as evidence of genuine use of the earlier mark were merely representative samples, statements such as ‘it is highly unlikely that [the other party to the proceedings before EUIPO] would be able to provide one invoice for 6 consecutive years and that these invoices would represent the only sales made by [that party] in those years’ and ‘it is reasonable to assume that additional invoices exist’ reflect not hasty suppositions, but simple logical inferences made in the context of turnover figures coming to several tens of millions of euros, attested to in an affidavit and supported by evidence neither the impartiality nor credibility of which can be called into question (see paragraphs 48, 53 and 54 above). It must be added that invoices with non-consecutive numbering constitute an indication of the existence of other invoices (see judgment of 4 April 2019, United Wineries v EUIPO – Compañía de Vinos Miguel Martín (VIÑA ALARDE) , T‑779/17, not published, EU:T:2019:220, paragraph 52 and the case-law cited). In any event, it must be observed, as EUIPO in essence contends, that it is clear from paragraph 62 of the contested decision that the Board of Appeal found that the quantities and amounts set out in the six invoices submitted were enough for the extent of use to be considered sufficient, before going on to add, in paragraph 63 of that decision, that it was reasonable to assume that additional invoices existed. Accordingly, the Board of Appeal concluded that there had been a sufficient degree of use, irrespective of whether or not those invoices were samples.

64 Therefore, since the Board of Appeal relied solely on solid evidence, which was assessed globally and which attests to sufficient use of the earlier mark, the applicant’s line of argument must be rejected as unfounded.

65 It follows from all of the foregoing that the second plea in law must be rejected.

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

66 By its arguments, the applicant calls into question, in essence, the scope of the concept of ‘sanitary installation’ and submits that the perception of the relevant public in that regard and, consequently, the degree of similarity of the goods at issue were not assessed correctly. The applicant also takes issue with the comparison of the marks at issue, maintaining that there are visual and phonetic differences between them. It further argues that the earlier mark is a weak mark, unlike the mark applied for, which has normal inherent distinctiveness. Lastly, according to the applicant, in its global assessment of the likelihood of confusion, the Board of Appeal would have arrived at the conclusion that there was no such likelihood had it taken into account both the low degree of distinctiveness of the earlier mark, on the one hand, and the fact that the similarity between the marks at issue lay in a weakly distinctive element, namely the concept of ‘chrome’, on the other, and had it analysed the marks in the light of the specific skills and knowledge of the relevant public.

67 EUIPO disputes the applicant’s arguments concerning the similarity of the goods at issue and of the marks at issue. However, it contends, in essence, that the contested decision should be annulled, because the weak distinctive character of both the earlier mark and the sign applied for was not expressly taken into consideration in the visual and phonetic comparison of the signs at issue or in the global assessment of the likelihood of confusion so far as the goods at issue were concerned.

68 At the hearing, EUIPO clarified that its line of argument related solely to the weak distinctive character of the earlier mark, and that the reference to the mark applied for, as such, was a clerical error and was to be understood as a reference to the distinctive character of the elements of which it is comprised.

69 It is important to note that, so far as EUIPO’s procedural position is concerned, EUIPO cannot be required to defend systematically every contested decision of a Board of Appeal or automatically to claim that every action challenging such a decision should be dismissed, and that there is nothing to prevent EUIPO from endorsing an applicant’s head of claim (see, to that effect, judgment of 25 October 2005, Peek & Cloppenburg v OHIM (Cloppenburg) , T‑379/03, EU:T:2005:373, paragraph 22).

70 In the present case, the form of order sought by EUIPO is admissible in so far as that form or order, and the arguments set out in support of it, do not go beyond the bounds of the form of order sought and the pleas in law put forward by the applicant (judgment of 7 May 2019, mobile.de v EUIPO (Representation of a car in a speech bubble) , T‑629/18, EU:T:2019:292, paragraph 19).

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

72 The risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS) , T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).

73 For the purpose of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel) , T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).

74 As a preliminary point, it must be stated that there is no reason to call into question the conclusions of the Board of Appeal – which, moreover, the applicant does not dispute – that the goods in question were aimed, in essence, at the general public with a passion for DIY and at professionals having specific knowledge of, or professional experience with, those goods, and that the relevant public, thus defined, had a high level of attention with regard to those goods.

(1) The comparison of the goods at issue

75 By its line of argument, the applicant submits, in essence, with reference to the definition of the group of products covered by the mark applied for, first, that the Board of Appeal did not correctly evaluate the various sub-types of products on the market and that, as a result, it included, under the general concept of ‘sanitary installations’, both goods made from metal or plastic materials, featuring such finishes, inter alia a chrome finish (the goods covered by the earlier mark), and used solely to deliver water, and goods not made of metal or chromed plastic and not having a chrome finish (the goods covered by the mark applied for). Second, the applicant maintains that the nature, intended purpose, method of use and distribution channels of the goods covered by the marks at issue are different.

76 EUIPO disputes the applicant’s line of argument.

77 According to the case-law, in assessing the similarity of the goods at issue, all the relevant factors relating to those goods 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 (judgments of 11 July 2007, El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños) , T‑443/05, EU:T:2007:219, paragraph 37; of 1 March 2018, Altunis v EUIPO – Hotel Cipriani (CIPRIANI) , T‑438/16, not published, EU:T:2018:110, paragraph 48; and of 19 April 2018, Rintisch v EUIPO – Compagnie laitière européenne (PROTICURD) , T‑25/17, not published, EU:T:2018:195, paragraph 84).

78 According to the case-law, complementary goods are those between which there is a close connection, in the sense that one is indispensable or important for the use of the other with the result that consumers may think that the same undertaking is responsible for manufacturing those goods (see judgment of 11 July 2007, PiraÑAM diseño original Juan Bolaños , T‑443/05, EU:T:2007:219, paragraph 48 and the case-law cited). Therefore, only goods intended for the same public and which may be used together may be regarded as complementary (see judgment of 20 November 2024, Domator24 v EUIPO – Acer (PREDATOR) , T‑33/23, not published, EU:T:2024:845, paragraph 41 and the case-law cited).

79 As a preliminary point, it must be observed that, first, there is no reason to call into question the Board of Appeal’s assessment in paragraph 105 of the contested decision – which, moreover, the applicant does not dispute – according to which the sub-category of ‘sanitary facilities, namely shower heads, pipe showers’ is identical to ‘bathroom installations; sanitary installations; fittings for sanitary purposes; sanitary apparatus and installations’, given that, when the goods designated by the earlier mark are covered by a general indication or included in a general category used in the mark applied for, those goods can be considered identical (see judgment of 7 September 2006, Meric v OHIM – Arbora & Ausonia (PAM-PIM’S BABY-PROP) , T‑133/05, EU:T:2006:247, paragraph 29 and the case-law cited).

80 Second, as regards the goods designated by the mark applied for which have a high degree of similarity to the goods covered by the earlier mark, the Board of Appeal considered, in paragraphs 103, 106 to 108 and 110 of the contested decision, that ‘bath fittings; shower bath installations; shower installations; showers; shower pans; shower platforms; shower cubicles; shower fittings; shower screens; shower doors; shower apparatus; shower units; pre-assembled multifunction showers; fitted liners for shower trays; showers for sale in kit form; shower baths; shower valves; walls for shower cubicles; bath tubs; bath screens; bath cubicles; bath linings; wall-mounted spouts for baths; shower mixing valves; taps; bathtub enclosures; tub overflows; valves [plumbing fittings]; water control valves’ in Class 11 were either showers themselves or were components that are indispensable or important for the functioning of the goods covered by the earlier mark. The Board of Appeal found that the goods designated by the mark applied for contributed to the primary and specific purpose of a shower, namely maintaining the personal hygiene of the whole body. According to the Board of Appeal, the goods at issue overlap in purpose and functional complementarity and are generally produced by the same undertakings and, consequently, they have a high degree of similarity to the ‘pipe showers’ of the other party to the proceedings before EUIPO.

81 In that respect, first of all, it must be observed that the applicant does not specifically dispute the main reason for which the goods referred to in paragraph 80 above were analysed together by the Board of Appeal, namely their common primary purpose and their specific complementarity, as is clear from paragraphs 106, 108, 110 and 111 of the contested decision. Nor does it deny that the goods applied for, taken together, all contribute to the primary purpose of washing the whole human body, in contrast to the other goods designated by the earlier mark in Class 11 that were found to be similar to an average or low degree, since they were intended to contribute to washing the hands or disposing of waste from the human body. In those circumstances, the difference in materials to which the applicant points, which ultimately relates to aesthetic considerations, cannot take precedence over the identity of the primary intended purpose and the functional link of complementarity between the goods covered by the mark applied for. In that regard, particular account should be taken of the applicant’s remark that ‘bath fittings, shower valves, shower mixing valves, taps, tub overflows, valves, water control valves’ are of no use without a bath tub or shower tray and are sold in a kit along with the bath tub or shower tray. That line of argument put forward by the applicant demonstrates that goods of a different nature can be – and in the present case are – functionally indispensable for one another, given their primary intended purpose, which is to create the conditions for maintaining the hygiene of the whole human body. In view of the foregoing, and taking into account the fact that a bath tub or shower tray is not made of metal, as the applicant argues, it must be held that the applicant has not established that the use of metal fittings or fittings with a metallic appearance was excluded in the present case with regard to the goods applied for, since all the abovementioned fittings can have a chrome appearance.

82 Similarly, as the Board of Appeal correctly stated, the nature of the goods at issue and their characteristics are not, as such, relevant with regard to the definition of sub-categories of goods (see judgment of 20 December 2023, Pharmaselect International and OmniActive Health Technologies v EUIPO – OmniActive Health Technologies and Pharmaselect International (LUTAMAX) , T‑221/22 and T‑242/22, not published, EU:T:2023:858, paragraph 64 and the case-law cited).

83 It is therefore necessary to reject the applicant’s line of argument that, in essence, the Board of Appeal erred in grouping together the goods designated by the mark applied for and listed in paragraph 80 above, without taking into account their nature or the various sub-types of goods, by mixing structural and non-structural goods, the former being made from materials other than metal and plastic whereas the latter, which serve to deliver water, are made of metal or plastic and have a chrome appearance. Similarly, since several of the products designated by the mark applied for can have a chrome appearance, the applicant has not established that that was not the case in this instance or that the relevant public would not expect some of the goods or their fittings to have such an appearance.

84 Accordingly, the Board of Appeal correctly identified and grouped the goods designated by the mark applied for as being directly and functionally related to ‘sanitary facilities, namely shower heads, pipe showers’ covered by the earlier mark.

85 In the second place, as regards the comparison of the goods covered by the earlier mark with those designated by the mark applied for (see paragraph 80 above), it must be observed that, in paragraphs 106 and 107 of the contested decision, read in the light of paragraph 111 thereof, the Board of Appeal clarified that the relevant factors characterising the relationship between the goods at issue were, in particular, their common purpose, which is to wash the whole human body, and the strict functional complementarity of the goods at issue in relation to that purpose.

86 The applicant submits, in essence, that the goods at issue are different, since they have different specific purposes, and are not complementary, since there is no interaction between them and one is not necessary for the proper functioning of the other. It argues that, in addition, they are completely different in terms of their nature, method of use, manufacturers and distribution channels.

87 First, as regards the intended purpose of the goods at issue, the applicant maintains, in essence, that they differ on account of differences relating to their specific intended purposes. It claims that the purpose of bath tubs and shower trays is to contain water, to be non-slip so as to prevent domestic accidents, and to be part of the furnishings of a room, whereas the purpose of showers is to dispense a flow of water in a particular manner and at a particular intensity.

88 In that regard, it must be noted that, once the primary intended purpose of the goods at issue is the same, as in the present case, all of those goods being manufactured to enable the hygiene of the whole body to be maintained, and given that the goods are directly related to one another, any intended purposes specific to each product will have only a limited impact, if any, on the assessment of the similarity of the goods at issue. Similarly, the structural aspect of the goods has no bearing on the alleged difference between the goods concerned, as a pipe shower will be chosen at the same time as a shower tray or bath tub, together with the appropriate fittings, so as to create the shower area within a bathroom.

89 Second, as regards the functional complementarity of the goods at issue, the applicant expressly disputes the conclusions, drawn by the Board of Appeal in paragraphs 103 and 107 of the contested decision, that the goods at issue are complementary and that they are produced by the same manufacturers, such that consumers may think that responsibility for the products in question might lie with the same undertaking. On the basis of Annexes A.8 and A.12, submitted for the first time before the General Court, the applicant maintains that manufacturers of bath tubs and shower trays do not produce products such as shower heads, pipes or taps. It argues that, similarly, the use of the goods covered by the earlier mark does not necessarily require the presence of a shower tray. Italian showers and showers integrated into a bathroom without a shower tray are relevant examples of this, as is demonstrated by Annexes A.9 and A.10, also submitted for the first time before the General Court. Moreover, according to the applicant, bath fittings, shower valves, shower mixing valves, taps, tub overflows, valves and water control valves are of no use without a bath tub or shower tray and are sold in a kit along with the bath tub or shower tray.

90 In the present case, as EUIPO has contended, all the goods at issue can be used together and, as was found in the contested decision, without it being disputed by the applicant, those goods are all intended for the same relevant public. Those goods are therefore liable to have functional complementarity, as was pointed out in paragraph 78 above.

91 In that regard, the applicant is admittedly correct in claiming that a pipe shower can function without a shower tray. Nevertheless, the reverse is not true, since no one would purchase a shower tray if they had no shower. Similarly, no one would purchase a bath screen if the end consumer did not wish to create a bath area with a pipe shower in the bath tub. Moreover, as the applicant maintains, some of the goods designated by the mark applied for are fittings that are indispensable or important for the functioning of a shower tray or bath tub, which are functionally complementary to pipe showers covered by the earlier mark. It must be observed, as the Board of Appeal pointed out, that the goods at issue not only may be used together, in accordance with the case-law cited in paragraph 78 above, but, for the most part, are designed for that purpose. It is true that there are trends relating to the goods at issue which may vary and, without it being necessary to rule on the admissibility of Annexes A.9 and A.10, it is conceivable that some end consumers might indeed prefer an Italian shower or a natural shower in their garden. Nevertheless, that does not prove that the perception of the relevant public has changed, as the applicant maintains, to the point of no longer using shower trays. If that were the case, the applicant would simply not produce such goods.

92 Furthermore, as regards the difference relating to the manufacturers of the goods at issue, it must also be observed, without it being necessary to rule on the admissibility of Annexes A.8 and A.12, that the examples provided by the applicant are contradictory in the light of its own situation, given that it offers bath tubs and shower trays as well as shower mixing valves and taps. Consequently, even assuming that the manufacturers of the goods at issue are not necessarily the same, in this instance, it must be borne in mind that that is the case with the applicant.

93 Accordingly, it follows from the foregoing that the applicant’s line of argument is not such as to call into question the assessments made by the Board of Appeal and, therefore, it must be rejected as unfounded.

94 Third, as regards the nature of the goods at issue, it should be noted, as a preliminary point, that the applicant does not dispute the Board of Appeal’s finding that some of the goods designated by the mark applied for consist of showers themselves. As for the remaining goods, as has been found in paragraphs 81 to 83 above, the difference in nature in no way precluded the conclusion that, in the present case, even though some are made of metal and others of ceramic, the goods at issue are, for the most part, designed to function together (see paragraph 81 above), notwithstanding the fact that some of them may function independently, as the applicant has argued at length. Therefore, even taking into account the nature of the goods at issue, the applicant’s line of argument must be rejected.

95 Similarly, fourth, as regards the use of the goods at issue, since they are designed to serve the primary purpose of enabling the hygiene of the whole body to be maintained, their main use is necessarily related to that primary purpose and, from that viewpoint, is highly similar, if not identical. The fact that a pipe shower can be moved around by unhooking it and holding it in the hand does not, contrary to the applicant’s view, establish any relevant difference in use by comparison with a bath tub, which remains fixed and a part of the setting when a shower is being taken, because the use of the goods at issue serves one and the same purpose. In the same vein, the use of a shower tray necessitates the use of a shower, without which there would be no point in using the tray, as has already been found. Therefore, contrary to the applicant’s line of argument, the use of the goods at issue is both concurrent and similar and is for the sole purpose of maintaining the hygiene of the whole human body.

96 Fifth, and lastly, as regards distribution channels, the applicant submits that the mere fact that two products may be available in the same commercial establishment does not necessarily mean that there is a direct link between them or that they should be considered to be similar. However, in large commercial establishments, structural products, such as bath tubs, shower trays, shower screens, shower doors, shower cubicles and their fittings, are, according to the applicant, sold separately from shower heads and taps, in view of their technical differences.

97 In that regard, it must be held that it has in no way been established in the present case that the goods at issue are sold in different sections. Accordingly, in the absence of evidence to support the applicant’s line of argument, it must be rejected as unfounded.

98 In view of the foregoing, it must be concluded that the Board of Appeal was correct in finding that there was a high degree of similarity between the goods covered by the earlier mark, on the one hand, and those identified in paragraph 80 above and designated by the mark applied for, on the other.

99 It follows from all of the foregoing that the Board of Appeal did not make an error of assessment in considering that the goods at issue were either identical or similar to a high degree.

(2) The comparison of the marks at issue

100 According to the applicant, the marks at issue are, in essence, different visually, phonetically and conceptually. It submits, inter alia, that the Board of Appeal contradicted itself in its analysis, in that it found that, visually, the difference at the beginning of the signs at issue would not necessarily have an impact, while it came to the opposite conclusion from a phonetic point of view. The applicant also maintains that those signs are composed of only two syllables, which makes any difference between those short signs all the more visible. It argues that, similarly, since the beginning and end of the marks at issue are different, that reinforces the different overall impressions which they produce.

101 EUIPO disputes the applicant’s arguments and contends that, since the marks at issue consist of more than three letters or characters, they cannot be classified as short. As regards the alleged contradiction, EUIPO maintains that the applicant has misinterpreted the contested decision and that it should be understood that the principle relating to the impact of the beginning of a sign cannot undermine the principle that an assessment of the similarity of trade marks must take account of the overall impression produced by those marks. According to EUIPO, as regards the visual aspect, the Board of Appeal took into account the lengths of the signs and the letters they have in common. So far as concerns the phonetic assessment, the statement of the Board of Appeal which is criticised must be read in the context of the overall phonetic impression given by the signs and as a reflection of the fact that the pronunciation of the signs differs only in the last letter of the sign applied for. As regards conceptual similarity, EUIPO contends that the applicant has not demonstrated that the goods at issue could not have chrome plating or a chrome look, for example in accessories such as handles or mouldings, or that the relevant public would not expect to find elements with such a look. It argues that the marks at issue therefore coincide in evoking the descriptive and weakly distinctive concept of chrome.

102 According to the case-law, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects, namely the visual, phonetic and conceptual aspects (judgments of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN) , T‑6/01, EU:T:2002:261, paragraph 30, and of 15 December 2010, Novartis v OHIM – Sanochemia Pharmazeutika (TOLPOSAN) , T‑331/09, EU:T:2010:520, paragraph 43).

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

104 According to settled case-law, the greater or lesser degree of distinctiveness of the elements common to the mark applied for and an earlier mark is one of the relevant factors in assessing the similarity of those signs (see judgment of 26 March 2015, Royal County of Berkshire Polo Club v OHIM – Lifestyle Equities (Royal County of Berkshire POLO CLUB) , T‑581/13, not published, EU:T:2015:192, paragraph 41 and the case-law cited).

105 Indeed, the descriptive, non-distinctive or weakly distinctive elements of a composite trade mark generally have less weight in the analysis of the similarity between the signs than the elements of greater distinctiveness, which are also more able to dominate the overall impression created by the mark (see, to that effect, judgment of 12 June 2019, Hansson , C‑705/17, EU:C:2019:481, paragraph 53 and the case-law cited).

106 In the present case, the Board of Appeal began its analysis of the similarities between the marks at issue by making the preliminary finding, in paragraphs 127 to 136 of the contested decision, that, in essence, in the context of the goods at issue, the elements comprising those marks evoked or alluded to the descriptive concept of ‘chrome’, which led it to conclude that those elements had a weak distinctive character.

107 The applicant disputes that finding and submits that the mark applied for has an average degree of inherent distinctiveness, since, even though it may evoke ‘chrome’ to a certain degree, none of the goods designated by the mark applied for has a chrome finish or is made of chrome, such that the allusion to chrome is not descriptive of any characteristic of the goods designated by that mark.

108 In that regard, as EUIPO contends, the applicant has not established that those goods would not have a chrome finish, even if only in respect of the appropriate accessories for those goods, nor that the relevant public would not expect to find goods with such a finish or appearance. In the absence of evidence to support that assertion, it must be held that, in the context of the goods at issue, the elements comprising the marks at issue evoke a characteristic of the goods at issue and therefore have a weak distinctive character, as the Board of Appeal found.

109 As regards the visual comparison, as the Board of Appeal correctly stated, the marks at issue have in common the sequence of four letters ‘roma’, placed in the same order. They differ both in their initial part by the letters ‘c’ and ‘k’, respectively, and in their final part by the letters ‘a’ and ‘t’, respectively. The earlier mark consists of five letters, whereas the mark applied for comprises six letters.

110 In that respect, it must be borne in mind that the alphabet is made up of a limited number of letters, which, moreover, are not all used with the same frequency, and that it is inevitable that many words will have the same number of letters and even share some of them, although they cannot, for that reason alone, be regarded as visually similar (see judgment of 28 April 2021, Nosio v EUIPO – Tros del Beto (ACCUSÌ) , T‑300/20, not published, EU:T:2021:223, paragraph 42 and the case-law cited).

111 Similarly, in general, in respect of word marks which are relatively short, such as those in the present case, the central elements are as important as the elements at the beginning and end of the sign (see judgment of 20 April 2005, Krüger v OHIM – Calpis (CALPICO) , T‑273/02, EU:T:2005:134, paragraph 39 and the case-law cited). It is apparent from the case-law that even insignificant differences between such signs are capable of creating a different overall impression (see judgment of 12 July 2019, MAN Truck & Bus v EUIPO – Halla Holdings (MANDO) , T‑698/17, not published, EU:T:2019:524, paragraph 58 and the case-law cited).

112 In the present case, the signs at issue do have visual differences, relating to their beginning and end, which will be easily perceived by the relevant public, such that, contrary to the Board of Appeal’s finding in paragraph 142 of the contested decision, the visual similarity is low rather than high.

113 As regards the phonetic comparison, the Board of Appeal correctly considered that the marks at issue had two syllables – ‘cro’ and ‘ma’, and ‘kro’ and ‘mat’, respectively – in respect of which only the final sound ‘t’ of the mark applied for differentiated those marks.

114 However, it must be observed that the stress in the two signs does not fall on the same syllable and the letter ‘t’ at the end of the sign applied for emphasises the rising intonation at the end of the pronunciation and that, as a result, the rhythm is different, as the applicant has correctly argued.

115 Consequently, it must be held that the two-syllable marks at issue have a degree of phonetic similarity which is average rather than high, contrary to what the Board of Appeal found in paragraph 145 of the contested decision, as the second syllable of those marks has a different intonation, rhythm and stress.

116 As regards the conceptual comparison, the Board of Appeal correctly found that the marks at issue coincided, in the context of the goods at issue, in their allusion to the descriptive concept of ‘chrome’. In that respect, even assuming that the mark applied for may evoke other words, such as ‘chromatic’, that in no way alters the fact that, in the context of the goods at issue, that mark will be perceived by the relevant public as having a connotation relating to chrome. Therefore, the applicant’s argument, referred to above, is ineffective. Similarly, the applicant itself acknowledges, in paragraph 101 of the application, that the mark applied for may be understood as alluding to ‘chrome’, which is sufficient for the marks at issue to be regarded as referring to the same concept. However, given that those marks coincide in the allusion to a common concept that is descriptive with regard to the goods at issue, the Board of Appeal was correct in taking that into account for the purpose of concluding that there was an average degree of conceptual similarity. Nevertheless, it must be held that the Board of Appeal should have concluded that there was a lower degree of similarity, in the light of the case-law cited in paragraph 105 above. Consequently, it must be held that the degree of conceptual similarity must be regarded as low rather than average, contrary to the conclusion reached by the Board of Appeal in paragraph 147 of the contested decision.

117 Thus, the Board of Appeal make an error of assessment in its analysis of the visual, phonetic and conceptual similarities (see paragraphs 112, 115 and 116 above), the impact of which will be examined in the global assessment of the likelihood of confusion, it being understood that the finding of an error would justify the automatic annulment of the contested decision only in so far as it has any bearing on the outcome of the proceedings (see, to that effect and by analogy, judgment of 15 October 2020, Rothenberger v EUIPO – Paper Point (ROBOX) , T‑49/20, not published, EU:T:2020:492, paragraph 70).

(3) The global assessment of the likelihood of confusion

118 The applicant submits, in essence, that the Board of Appeal did not carry out its global assessment of the likelihood of confusion correctly, since it failed to take into account all the factors relevant to the circumstances of the case and, in particular, the fact that the goods are not similar, as the earlier mark has weak inherent distinctiveness and the marks have visual and phonetic differences relating to elements of average distinctiveness, which will dominate the overall impression created by those marks.

119 EUIPO disputes the applicant’s arguments. However, it contends that the contested decision should be annulled since the Board of Appeal did not expressly factor in the weak distinctive character of the earlier mark or the common elements of the marks at issue, which have a low degree of distinctiveness, during the global assessment of the likelihood of confusion.

120 It is settled case-law that 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 (see, by analogy, judgment of 22 June 1999, Lloyd Schuhfabrik Meyer , C‑342/97, EU:C:1999:323, paragraph 19 and the case-law cited). It is also apparent from the case-law that the more distinctive the earlier mark, the greater will be the likelihood of confusion (judgments of 11 November 1997, SABEL , C‑251/95, EU:C:1997:528, paragraph 24, and of 29 September 1998, Canon , C‑39/97, EU:C:1998:442, paragraph 18).

121 As a preliminary point, it must be observed that there is no reason to call into question the Board of Appeal’s finding – which, moreover, the applicant does not dispute – that the inherent distinctiveness of the earlier mark must be considered to be weak.

122 The Board of Appeal considered, in essence, that, despite the high level of attention on the part of the relevant public and the weak inherent distinctiveness of the earlier mark, the almost identical length and the same sequence of four letters, in combination with the overall visual impression, were sufficient for it to find that there was a likelihood of confusion in relation to the goods which had been considered to be identical or highly similar to the goods covered by the earlier mark.

123 In the present case, having regard to the errors of assessment found previously (see paragraph 117 above), it is necessary to ascertain whether those errors have the consequence of rendering unlawful the outcome of the global assessment of the likelihood of confusion between the marks at issue.

124 In that regard, account must be taken of the fact that the goods at issue are identical or similar to a high degree, that the level of attention on the part of the relevant public, which has specific experience and technical knowledge relating to the goods, is also high, that the inherent distinctiveness of the earlier mark is weak, and that the marks at issue are visually, phonetically and conceptually similar to a low, average and low degree, respectively. Accordingly, since those marks are, globally, similar to a low degree, and given the high level of attention on the part of the relevant public, combined with the weak distinctiveness of the earlier mark, a likelihood of confusion may be ruled out as regards both the goods considered to be identical and those considered to have a high degree of similarity to the goods covered by the earlier mark.

125 Indeed, the principle of interdependence is not intended to be applied mechanically. Thus, while it is true that, by virtue of the principle of interdependence, a lesser degree of similarity between the goods or services covered may be offset by a greater degree of similarity between the signs at issue, conversely there is nothing to prevent a finding that, in view of the circumstances of a particular case, there is no likelihood of confusion, even where identical goods are involved and there is a weak degree of similarity between the signs (see judgment of 6 December 2023, Vi.ni.ca. v EUIPO – Venica & Venica (agricolavinica. Le Colline di Ripa) , T‑627/22, not published, EU:T:2023:782, paragraph 111 and the case-law cited).

126 Accordingly, the Board of Appeal erred in concluding that there was a likelihood of confusion between the signs at issue, within the meaning of Article 8(1)(b) of Regulation 2017/1001.

127 In view of all the foregoing considerations, the applicant’s third plea in law must be upheld and, consequently, the contested decision must be annulled.

2. The claim seeking alteration of the contested decision

128 As has been noted in paragraph 15 above, by its second head of claim, the applicant asks the Court to alter the contested decision by finding there to be no likelihood of confusion, in essence, with regard to all the goods referred to in paragraph 3 above.

129 EUIPO contends that the applicant’s claim for alteration should be dismissed, since the conditions for alteration have not been met. It states that, in the present case, the Board of Appeal assessed the likelihood of confusion solely on the basis of the relevant Catalan-speaking public. Thus, it argues, if no likelihood of confusion is found for that segment of the relevant public in the European Union, it will be necessary to examine whether there is such a likelihood for the rest of the public in the European Union. Consequently, the Court cannot alter the contested decision. EUIPO confirmed that stance at the hearing.

130 It is clear from the case-law that the power of the General Court to alter decisions under Article 72(3) of Regulation 2017/1001 does not have the effect of conferring on that Court the power to substitute its own reasoning for that of a Board of Appeal or to carry out an assessment on which that Board of Appeal has not yet adopted a position. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the General Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take (judgment of 5 July 2011, Edwin v OHIM , C‑263/09 P, EU:C:2011:452, paragraph 72; see, also, judgment of 28 January 2016, Gugler France v OHIM – Gugler (GUGLER) , T‑674/13, not published, EU:T:2016:44, paragraph 100 and the case-law cited).

131 In the present case, it must be observed that the Board of Appeal did not adopt a position, in the contested decision, on whether there is a likelihood of confusion between the signs at issue for the non-Catalan-speaking part of the relevant public, with the result that it is not for the Court to assess whether there is a likelihood of confusion for that part of the relevant public in the context of its examination of the claim for alteration of that decision.

132 It is clear from paragraph 137 of the contested decision that the Board of Appeal took the view that it was appropriate to assess the likelihood of confusion on the basis of the Catalan-speaking public, since the marks at issue were most closely connected with that part of the relevant public. However, as EUIPO contends, the fact that a likelihood of confusion has been ruled out for that public does not necessarily mean that such a likelihood is to be automatically ruled out for the remainder of the relevant public; accordingly, the Court cannot find that there is no likelihood of confusion between the marks at issue throughout the European Union and for all of the relevant public, if it is to avoid substituting its own reasoning for that of the Board of Appeal.

133 The present claim must therefore be dismissed.

IV. Costs

134 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.

135 Since EUIPO has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the applicant.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1. Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 May 2025 (Case R 22/2024-2);

2. Orders EUIPO to pay the costs.

Delivered in open court in Luxembourg on 16 September 2026.

* Language of the case: English.