Judgment of the General Court (Ninth Chamber) 7 October 2026

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

7 October 2026 ( * )

( EU trade mark – Opposition proceedings – International registration designating the European Union – Figurative mark ABACCO’S STEAKHOUSE – Earlier national word mark ABAC – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )

In Case T‑86/26,

Abacco’s GmbH, established in Ludwigsburg (Germany), represented by K. Mandel, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,

defendant,

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

Restaurant Abac, SL, established in Barcelona (Spain),

THE GENERAL COURT (Ninth Chamber),

composed of S. Kingston, President, A. Marcoulli and P. Zilgalvis (Rapporteur), 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, Abacco’s GmbH, formerly Abacco Verwaltung GmbH, seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 10 December 2025 (Case R 926/2025-4) (‘the contested decision’).

Background to the dispute

2 On 23 January 2023, the predecessor in law of the applicant, ABACCO’s Beratung & Management GmbH, obtained from the International Bureau of the World Intellectual Property Organization (WIPO) the international registration designating the European Union bearing the number 1368638 in respect of the figurative mark ABACCO’S STEAKHOUSE, reproduced below:

3 That international registration was notified to EUIPO on 9 February 2023 pursuant to 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).

4 The mark applied for covered services in Class 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 to the following description: ‘Services for providing food and drink; temporary accommodation’.

5 On 13 June 2023, the other party to the proceedings before the Board of Appeal, Restaurant Abac, SL, filed a notice of opposition to registration of the mark applied for in respect of the services referred to in paragraph 4 above.

6 The opposition was based, in particular, on the earlier Spanish word mark ABAC, filed on 3 May 2004 and registered on 25 April 2005 under number 2594547, covering services in, inter alia, Class 43 and corresponding to the following description: ‘Services for providing food and drink and temporary accommodation’. The proprietor of that mark claimed that the mark had acquired enhanced distinctiveness through use and that it had a reputation.

7 The grounds relied on in support of the opposition were those set out in Article 8(1)(b) and (5) of Regulation 2017/1001.

8 Following a request by the applicant, EUIPO invited the other party to the proceedings before the Board of Appeal to furnish proof of genuine use of the earlier mark relied on in support of the opposition. That party complied with that request within the prescribed time limit.

9 On 28 March 2025, the Opposition Division upheld the opposition pursuant to Article 8(1)(b) of Regulation 2017/1001 in respect of the services referred to in paragraph 4 above.

10 On 22 May 2025, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision.

11 By the contested decision, the Board of Appeal dismissed the appeal on the ground, in essence, that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001 in respect of the services referred to in paragraph 4 above. In order to reach that conclusion, the Board of Appeal, in the first place, upheld the Opposition Division’s finding that use of the earlier mark had been demonstrated in respect of services for providing food and drink and hotel services in Class 43. In the second place, in examining whether there was a likelihood of confusion, the Board of Appeal found, first, that, on account of the scope of protection of the earlier national mark, the relevant territory was Spain and that the services at issue were aimed at the general public with an average level of attention, second, that the services at issue were identical, third, that the word element ‘abacco’s’ was the most distinctive and dominant element of the mark applied for, fourth, that the signs were visually similar to an average degree and phonetically similar to at least an above-average degree, but were conceptually dissimilar and, fifth, that the earlier mark had an average degree of inherent distinctiveness and had acquired enhanced distinctiveness through use.

Forms of order sought

12 The applicant claims that the Court should:

– annul the contested decision;

– order that the mark applied for be registered in the European Union in respect of all the services refused;

– order EUIPO to pay the costs.

13 EUIPO contends that the Court should:

– dismiss the action;

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

Law

The applicant’s second head of claim

14 EUIPO submits that the applicant’s second head of claim must be rejected as inadmissible.

15 By its second head of claim, the applicant asks the Court to order that the mark applied for be registered in the European Union in respect of all the services refused.

16 In that regard, it is sufficient to recall that, when exercising judicial review of legality under Article 263 TFEU, the Court has no jurisdiction to issue directions to the institutions, bodies, offices and agencies of the European Union (see order of 26 October 1995, Pevasa and Inpesca v Commission , C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 24 and the case-law cited; see also, to that effect, judgment of 25 September 2018, Sweden v Commission , T‑260/16, EU:T:2018:597, paragraph 104 and the case-law cited).

17 In the event that the applicant’s second head of claim should be understood as seeking that the Court alter the contested decision, within the meaning of Article 72(3) of Regulation 2017/1001, by adopting the decision which the Board of Appeal should have taken, in accordance with the provisions of that regulation, it must be borne in mind that the competent bodies of EUIPO do not adopt formal decisions recording the registration of an EU trade mark which could be the subject of an appeal. Consequently, the Board of Appeal does not have power to take cognisance of an application that it should register an EU trade mark. Nor, in those circumstances, is it for the Court to take cognisance of an application for alteration requesting that it amend the decision of a Board of Appeal to that effect (see, to that effect, judgment of 12 April 2011, Euro-Information v OHIM (EURO AUTOMATIC PAYMENT) , T‑28/10, EU:T:2011:158, paragraph 13 and the case-law cited).

18 It follows that, in any event, the second head of claim must be rejected on the grounds of lack of jurisdiction.

Substance

19 In support of its action, the applicant puts forward a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. Relying on several errors of law and of assessment, it disputes the Board of Appeal’s findings relating to the similarity of the signs and the existence of a likelihood of confusion within the meaning of that provision.

20 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. Furthermore, under Article 8(2)(a)(ii) of Regulation 2017/1001, ‘earlier trade marks’ means trade marks registered in a Member State with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.

21 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).

22 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).

23 It is in the light of the principles referred to above that the single plea in law must be examined.

24 As a preliminary point, it should be noted that the applicant does not call into question the Board of Appeal’s assessment relating to the relevant public, its level of attention and the comparison of the services at issue.

25 First, in that regard, it must be borne in mind that, as regards the relevant public, the Board of Appeal found that the services at issue were aimed at the general public with an average level of attention. Since the earlier mark is a Spanish trade mark, the Board of Appeal stated that the relevant territory was Spain.

26 Second, as regards the comparison of the services concerned, the Board of Appeal found that they were identical in so far as the services for providing food and drink and hotel services in Class 43 in respect of which genuine use of the earlier mark had been demonstrated were included in the services for providing food and drink and temporary accommodation in Class 43 and covered by the mark applied for.

27 Those assessments, which are not, moreover, disputed by the applicant, must be upheld.

The comparison of the signs

28 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).

29 In the present case, it is necessary to compare the earlier mark, composed of the sole word element ‘abac’, with the mark applied for, consisting of the word element ‘abacco’s’, written in a standard typeface in upper-case letters, separated by a ‘somewhat blurred’ horizontal line from the word element ‘steakhouse’, written in a similar standard typeface and in slightly smaller characters.

– The distinctive and dominant elements of the mark applied for

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

31 For the purpose of assessing the distinctive character of an element forming part of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings. In making that assessment, it is necessary to take into account, in particular, the inherent characteristics of that element and to ask whether it is at all descriptive of the goods or services for which the mark has been registered (see judgment of 13 December 2007, Cabrera Sánchez v OHIM – Industrias Cárnicas Valle (el charcutero artesano) , T‑242/06, not published, EU:T:2007:391, paragraph 51 and the case-law cited).

32 As regards the assessment of whether one or more given components of a composite trade mark is dominant, account must be taken, in particular, of the intrinsic qualities of each of those components by comparing them with those of other components. In addition and accessorily, account may be taken of the relative position of the various components within the arrangement of the composite mark (judgment of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN) , T‑6/01, EU:T:2002:261, paragraph 35).

33 In the present case, the Board of Appeal found that the element ‘abacco’s’ was the possessive form, in English, of the element ‘abacco’, devoid of meaning, and, consequently, that it had an average degree of distinctiveness. The element ‘steakhouse’, although it corresponds to a term which is not part of basic English vocabulary, would, for its part, be understood by Spanish consumers in the context of the relevant services as a description of the establishment of the proprietor of the mark applied for, in which the services covered by that mark are provided, since those consumers regularly frequent restaurants designated by the common international term ‘steakhouse’, in which steaks are served, and since a proportion of Spanish-speaking consumers have a good knowledge of English. As regards the line separating the two word elements, it was considered to be devoid of distinctive character. In the light of those assessments, the Board of Appeal concluded that the element ‘abacco’s’ was the most distinctive and dominant element of the mark applied for.

34 In that regard, the applicant merely submits that, by considering the other elements making up the mark applied for to be secondary and negligible, the Board of Appeal attributed decisive importance to a single ‘segment of the signs’ and did not carry out a proper assessment of their overall impression. That argument is not such as to call into question the Board of Appeal’s finding that the element ‘abacco’s’ is the most distinctive and dominant element of the mark applied for.

– The visual, phonetic and conceptual comparison

35 In general, the applicant criticises the Board of Appeal for failing to compare the signs as a whole, but instead breaking them down in order to focus solely on the word element ‘abac’.

36 In the first place, as regards the visual comparison of the signs, the applicant submits that the Board of Appeal reduced the comparison of the signs to an analysis centred on the coinciding initial sequence ‘abac’ instead of assessing the overall impression created by the signs at issue. By attributing decisive importance to that common element and classifying the other elements making up the mark applied for as secondary or negligible, the Board of Appeal carried out a fragmented assessment of that mark. Thus, it did not take into account the presence of additional word elements, the greater length of the mark applied for and its distinct structure. According to the applicant, the partial coincidence of the sequence of letters ‘a’, ‘b’, ‘a’ and ‘c’ is insufficient to offset the obvious visual differences.

37 Similarly, the applicant submits that the Board of Appeal ‘erred in law by failing to take due account of the extremely short nature of the earlier mark …, thereby committing a manifest error of assessment’. The applicant submits that the case-law according to which a difference consisting of a single letter may sometimes prevent a finding of a high degree of similarity between two short word signs applies in the present case, given that the earlier mark contains only four letters, whereas the mark applied for is a composite and significantly longer sign. Referring to EUIPO Guidelines, it also submits that, in the case of short signs, the comparison depends to a large extent on their stylisation and on the way in which the letters are represented, since graphic differences may eclipse any common element. The applicant adds that the earlier mark contains a lower-case letter ‘a’ as the penultimate character, which, in such a short sign, is immediately perceptible and cannot be regarded as decorative. Similarly, according to the case-law, the presence of a lower-case letter may produce a different visual impression from that created by its upper-case equivalent.

38 EUIPO disputes the applicant’s arguments.

39 In the present case, the Board of Appeal found that the signs at issue were visually similar overall to an average degree. In particular, it noted that the earlier mark was reproduced identically at the beginning of the most distinctive and dominant element of the mark applied for. Thus, the signs differed only in the addition of the ‘co’s’ element at the end of the most distinctive and dominant element of the mark applied for, as well as in the non-distinctive word element ‘steakhouse’ and the non-distinctive figurative stylisation, also present in that mark. Furthermore, more than half of the letters of the most distinctive and dominant element of the mark applied for reproduce the earlier mark identically and the apostrophe in the mark applied for is not such as to differentiate the signs visually. As regards the element ‘steakhouse’ and the figurative element of the mark applied for, they are devoid of distinctive character and have less weight in the analysis of the similarity of the signs than the element ‘abacco’s’.

40 It should be noted that the Board of Appeal, as is apparent from paragraph 39 above, did not carry out a fragmented assessment of the marks at issue, as the applicant claims, but did take into account the overall impression produced by those marks and, in particular, by the mark applied for, taking into account the distinctive and dominant elements, in accordance with the case-law referred to in paragraphs 28 and 30 above. Indeed, as the Board of Appeal found, it must be held that the earlier mark is reproduced in the most distinctive and dominant element of the mark applied for, with the result that the signs differ only in the part ‘co’s’, present in that element, and in the element ‘steakhouse’ and the figurative element, both of which are, however, devoid of distinctive character. Thus, while it is true that the Board of Appeal attached relatively great importance to the coincidence of the sequence of the letters ‘a’, ‘b’, ‘a’ and ‘c’ in the signs at issue, such an assessment is nevertheless consistent with the applicable case-law cited above.

41 In that regard, it must also be noted that the applicant itself appears to admit that the element ‘steakhouse’ is descriptive in the present case and, in any event, that it has not put forward any arguments calling into question the assessments relating to the most distinctive and dominant elements of the mark applied for (see paragraph 33 above).

42 It follows that the Board of Appeal was correct in concluding that the marks at issue were visually similar to an average degree.

43 That conclusion cannot validly be called into question by the applicant’s various arguments.

44 As regards the case-law relating to short signs, it is true that the shorter a sign, the more likely the public is to perceive the differences between the signs at issue, since such differences may lead to different overall impressions (see judgment of 28 September 2016, The Art Company B & S v EUIPO – G-Star Raw (THE ART OF RAW) , T‑593/15, not published, EU:T:2016:572, paragraph 28 and the case-law cited). Consequently, it has been held that, in the case of short words, it is common for even slight differences to produce a different overall impression (judgment of 30 June 2021, Wolf Oil v EUIPO – Rolf Lubricants (ROLF) , T‑531/20, not published, EU:T:2021:406, paragraph 48). However, in the present case, as EUIPO submits, the mark applied for cannot be classified as a short sign, even when account is taken only of its most distinctive and dominant element. Consequently, the applicant’s argument is ineffective.

45 As regards the applicant’s reference to EUIPO Guidelines, it must be borne in mind that those guidelines are not binding legal acts for the purpose of interpreting provisions of EU law (judgment of 19 December 2012, Leno Merken , C‑149/11, EU:C:2012:816, paragraph 48).

46 In any event, the applicant’s argument relating to the importance of the stylisation of the word elements in the comparison of short signs cannot succeed in the present case. As regards the mark applied for, it must be stated that the word elements of which it consists are written in a standard typeface (see paragraph 29 above). The earlier mark, for its part, consists of a word mark. According to the case-law, in so far as a word mark is a mark consisting exclusively of letters, of words or of associations of words, written in printed characters in normal font, without any specific graphic element, the protection which results from the registration of such a mark concerns the word mentioned in the application for registration and not the specific graphic or stylistic elements accompanying that mark (see judgment of 3 July 2013, Airbus v OHIM (NEO) , T‑236/12, EU:T:2013:343, paragraph 39 and the case-law cited).

47 As regards the applicant’s argument that the presence of the lower-case letter ‘a’ in the penultimate position of the earlier mark is perceptible to the relevant public, it is sufficient to note that the earlier mark on which the Board of Appeal relied in order to assess whether there was a likelihood of confusion in the present case does not contain lower-case letters. Similarly, in accordance with the case-law cited in paragraph 46 above, given that the earlier mark is a word mark, the penultimate letter thereof cannot be seen to differ from the other letters making up the mark.

48 In the second place, as regards the phonetic comparison of the signs, the applicant submits that the degree of similarity in that regard must be regarded as low, or even negligible. It submits that, by isolating the initial sound sequence and downplaying the impact of the additional syllables introduced by the suffix ‘cco’s’ and the element ‘steakhouse’, the Board of Appeal failed to assess the pronunciation of the contested sign as a whole.

49 Similarly, the applicant submits that the earlier mark is pronounced as a very short word, probably composed of two syllables, whereas the mark applied for is pronounced as a much longer sequence, comprising several additional syllables, and with a significantly different rhythm and cadence. The latter significantly alter the phonetic structure of the mark applied for. Despite the fact that the element ‘steakhouse’ is descriptive, it cannot be assumed to be systematically omitted in oral use, in particular where it forms an integral part of the sign as registered. Moreover, the respective stress patterns of the marks at issue differ significantly.

50 The applicant adds that the Court has consistently held that a limited coincidence at the beginning of the signs cannot lead to phonetic similarity where the remainder of the sign substantially alters its pronunciation and sound pattern.

51 EUIPO disputes the applicant’s arguments.

52 In the present case, the Board of Appeal found that the signs at issue were phonetically similar to at least an above-average degree. It found that the signs coincided as regards the element ‘abac’ at the beginning of the mark applied for and that the sequence of letters ‘cc’ in the element ‘abacco’s’ would be pronounced in the same way as the letter ‘c’ in the earlier mark, namely as a ‘k’. It also found that the signs differed phonetically in the presence of the element ‘o’s’ at the end of the most distinctive and dominant element of the mark applied for and in the additional non-distinctive element ‘steakhouse’ in that mark. However, because of the tendency of consumers to abbreviate signs composed of several elements, the public will most likely pronounce only the element ‘abacco’s’ in the mark applied for. The latter, despite a different number of syllables and the presence of the additional element ‘o’s’, has a vowel structure, a rhythm and intonation very similar to those of the earlier mark. Lastly, according to the Board of Appeal, the apostrophe and the figurative element present in the mark applied for have no influence on the pronunciation of the mark applied for.

53 In that regard, it must be held that the Board of Appeal took into account both the length of the signs at issue and the different number of syllables of those signs. It also noted that the pronunciation of the earlier mark and that of the most distinctive and dominant element of the mark applied for differed only in the final part, namely ‘o’s’, of the element ‘abacco’s’. By contrast, it must be stated that the pronunciation of the first five letters of the element ‘abacco’s’ coincides with that of the earlier mark, which, moreover, is not disputed by the applicant.

54 Similarly, the Board of Appeal correctly found that the element ‘steakhouse’, which is devoid of distinctive character in the mark applied for (see paragraph 33 above), might not be pronounced. According to the case-law, consumers naturally tend to abbreviate long signs and not to pronounce all the word elements of which they consist, in particular where those elements are devoid of distinctive character (see, to that effect, judgments of 2 February 2022, Canisius v EUIPO – Beiersdorf (CCLABELLE VIENNA) , T‑694/20, not published, EU:T:2022:45, paragraph 76 and the case-law cited).

55 As regards paragraph 82 of the judgment of 16 June 2021, Chanel v EUIPO – Innovative Cosmetic Concepts (INCOCO) (T‑196/20, not published, EU:T:2021:365), to which the applicant refers in order to claim that ‘[the Court] has consistently held that a limited coincidence at the beginning of the signs cannot lead to phonetic similarity where the remainder of the sign substantially alters its pronunciation and sound pattern’, it is sufficient to note that that paragraph contains assessments of the Board of Appeal which adopted the contested decision in that case, with the result that those assessments cannot in any way illustrate any consistent practice on the part of the Court. Therefore, the applicant’s argument is manifestly unfounded.

56 It follows that, despite the different number of syllables in the marks at issue, the pronunciation of the earlier mark ABAC and that of ‘abacco’s’ – the most distinctive and dominant element of the mark applied for – are very similar, whereas the element ‘steakhouse’ in the mark applied for will probably not be pronounced. It follows that, in those circumstances, the Board of Appeal was justified in finding that the signs were phonetically similar to at least an above-average degree.

57 In the third place, as regards the conceptual comparison of the signs, the applicant does not dispute the Board of Appeal’s finding, but claims that the Board of Appeal did not take account of the conceptual distance between the signs in its assessment of similarity. It submits that the existence of a clear conceptual difference between the signs further reduces the likelihood that the relevant public will perceive them as coming from the same undertaking or from economically linked undertakings. It submits that it would be inappropriate to artificially break down the mark applied for in order to attribute an autonomous and dominant role to the sequence of letters ‘a’, ‘b’, ‘a’ and ‘c’, which has no clear conceptual meaning per se and will not be perceived independently by the average consumer.

58 EUIPO disputes the applicant’s arguments.

59 In the present case, the Board of Appeal found, in essence, that only the mark applied for contained an element with a meaning, namely the non-distinctive element ‘steakhouse’. It inferred from this that the signs at issue were conceptually different. That assessment, which, moreover, is not disputed by the applicant, does not contain any error of assessment and must be upheld.

60 In that regard, it should be borne in mind that, where one of the marks at issue has a meaning from the perspective of the relevant public and the other 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).

61 However, conceptual differences attributable solely to elements that are weakly distinctive attract consumers’ attention only in a limited manner. That is all the more so in the case of elements which are devoid of distinctive character, such as the element ‘steakhouse’ in the present case (see, to that effect, judgment of 6 May 2026, Pharma Green Holding v EUIPO – ALMA Lasers (alma farmacie) , T‑480/25, not published, EU:T:2026:317, paragraph 98 and the case-law cited). Thus, even if the applicant’s argument that the existence of a ‘clear conceptual distance between the signs’ further reduces the likelihood of confusion must be understood as claiming that the conceptual differences counteract the visual and phonetic similarities, it cannot, in any event, succeed on account of the limited impact of the non-distinctive element in question.

62 Furthermore, the argument that the Board of Appeal found that the element ‘abac’ retained an independent distinctive role in the mark applied for stems from a misreading of the contested decision, in so far as the Board of Appeal did not make such a finding. On the contrary, in paragraph 61 of the contested decision, the Board of Appeal found that the element ‘abacco’s’ formed ‘a single meaningless expression in the possessive form’.

63 The Board of Appeal therefore correctly found that the signs at issue were conceptually different.

64 In the fourth place, the applicant submits that the Board of Appeal erred in law by attributing decisive importance to the allegedly enhanced distinctive character of the earlier mark in the assessment of the signs. According to the case-law, that aspect may be taken into account in the global assessment of the likelihood of confusion, but cannot influence, as such, the comparison of the signs.

65 It is sufficient to note, as EUIPO did, that the applicant’s argument is due to a misreading of the contested decision. The Board of Appeal did not in any way refer to the enhanced distinctiveness of the earlier mark in the part relating to the comparison of the signs, but in that relating to the global assessment of the likelihood of confusion, with the result that the applicant’s argument must be rejected.

66 It follows that the Board of Appeal did not err in law or make an error of assessment in finding that the signs at issue were visually similar to an average degree and phonetically similar to at least an above-average degree and that they were conceptually different.

The distinctiveness of the earlier mark

67 In the present case, first, the Board of Appeal found, as did the Opposition Division, that the earlier mark, in the context of the services at issue, was devoid of meaning and, therefore, had an average degree of inherent distinctiveness. Second, it also endorsed the Opposition Division’s finding that the earlier mark had acquired a high degree of distinctiveness through its extensive use on the market in relation to services for providing food and drink and hotel services.

68 Those considerations, which, moreover, are not seriously contested by the applicant, are correct and must be upheld.

The global assessment of the likelihood of confusion

69 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, 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 74).

70 The applicant submits that the Board of Appeal erred in law in finding that there was a likelihood of confusion despite the insufficient similarity between the signs. It complains that the Board of Appeal misapplied the principle of interdependence and attributed excessive weight to factors such as the identity of the services and the alleged strength of the earlier mark’s reputation, which cannot compensate for the insufficient similarity of the signs. According to the applicant, the degree of similarity between the signs found by the Board of Appeal, which, moreover, it disputes, is insufficient in law to support the finding that there is a likelihood of confusion in the present case. In support of its argument, it refers to the judgment of 28 March 2019, Julius-K9 v EUIPO – El Corte Inglés (K9 UNIT) (T‑276/18, not published, EU:T:2019:200), where the Court held that the Board of Appeal had erred in attributing an independent distinctive role to a common element, even though the additional elements of the later mark were sufficient to differentiate the signs overall. According to the applicant, that judgment can be applied to the present case, in so far as the mark applied for will be perceived as a coherent whole referring to a new specific type of restaurant, and not as a variation or extension of the earlier mark.

71 In addition, the applicant submits that the likelihood of confusion must be assessed in a realistic manner, taking into account the way in which the relevant public will perceive the marks on the market. Thus, although the services at issue are in the same Class 43, the establishments designated by the marks at issue address different segments of consumers and convey clearly distinct commercial messages. Moreover, the applicant has no interest in creating any association with the earlier mark since such an association would be detrimental to it commercially. A supposed link with a premium fine-dining restaurant could lead consumers to expect higher prices, thereby discouraging them from patronising the establishments designated by the mark applied for.

72 Lastly, the applicant claims that the fact that the Board of Appeal relies on the enhanced distinctiveness of the earlier mark cannot remedy the lack of sufficient similarity between the signs, since the enhanced distinctiveness alone cannot give rise to a likelihood of confusion where the similarities of the signs are too weak for the earlier mark to be recognisable in the later sign.

73 EUIPO disputes the applicant’s arguments.

74 In the present case, the Board of Appeal found that, in view of the enhanced distinctiveness of the earlier mark, the identity of the services at issue, the average level of attention of the relevant public and the average degree of visual and at least above-average phonetic similarity of the signs, there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001. In that regard, it found that the word element ‘steakhouse’, included in the mark applied for, was descriptive and, therefore, that the public would pay only limited attention to it.

75 In the first place, it should be noted that the various assessments enabling the Board of Appeal to reach the conclusion relating to the existence of a likelihood of confusion are correct. Indeed, the services at issue are identical (see paragraphs 26 and 27 above), the signs have an average degree of visual similarity and at least an above-average degree of phonetic similarity, but are conceptually different (see paragraphs 42, 56 and 63 above). In addition, the proprietor of the earlier mark has shown that that mark enjoys enhanced distinctiveness (see paragraphs 67 and 68 above). In the light of those various assessments, the Board of Appeal was entitled, without making an error of law or of assessment, to conclude that there was a likelihood of confusion in the present case.

76 In that regard, it must be stated that, contrary to the applicant’s claims, the Board of Appeal did indeed take into account the case-law referred to in paragraph 69 above and, in particular, the principle of interdependence and did not attribute too much importance to factors which would not compensate for the alleged insufficient similarity of the signs.

77 Similarly, contrary to the applicant’s claims, the Board of Appeal did not find that the earlier mark retained an independent distinctive role in the mark applied for, with the result that the applicant’s arguments to that effect, including the reference to the relevant case-law, are ineffective (see paragraph 62 above).

78 In the second place, it must be held that the conclusion relating to the existence of a likelihood of confusion in the present case cannot be called into question by the circumstances relied on by the applicant, according to which the establishments designated by the marks at issue address different segments of consumers and convey clearly distinct commercial messages. As particular marketing strategies for the goods or services covered by the marks may vary over time depending on the wishes of the proprietors of those marks, an analysis of whether there will be a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001 cannot be dependent on marketing intentions of the proprietors of the marks, whether implemented or not, which are by their very nature subjective (see, to that effect, judgment of 9 September 2008, Honda Motor Europe v OHIM – Seat (MAGIC SEAT) , T‑363/06, EU:T:2008:319, paragraph 63 and the case-law cited).

79 In accordance with the case-law cited in paragraph 78 above, it is also necessary to reject the applicant’s argument that it does not seek to take advantage of the reputation of the earlier mark. In any event, it must be borne in mind that the good faith of an applicant for registration of a trade mark is always presumed until proven otherwise (see judgment of 23 May 2019, Holzer y Cia v EUIPO – Annco (ANN TAYLOR and AT ANN TAYLOR) , T‑3/18 and T‑4/18, EU:T:2019:357, paragraph 34 and the case-law cited).

80 In the third and last place, as regards the distinctive character of the earlier mark, it must be borne in mind that that is one of the factors relevant to the present case in that it determines the scope of protection of that mark. The Court has previously stated that the more distinctive the earlier mark, the greater the likelihood of confusion will be (see judgment of 12 June 2019, Hansson , C‑705/17, EU:C:2019:481, paragraph 42 and the case-law cited). Thus, in the present case, the Board of Appeal had to take it into account.

81 It must also be pointed out that, contrary to the applicant’s claims, the Board of Appeal’s finding that there is a likelihood of confusion is not based solely on the enhanced distinctiveness of the earlier mark, but on all the relevant criteria (see paragraph 74 above). It follows, in particular, that the Board of Appeal did not find that the enhanced distinctiveness of the earlier mark ‘[remedied] the absence of sufficient similarity between the signs’. In that regard, it should be added that the applicant’s line of argument is based on the incorrect premiss that the degree of similarity of the signs is low in the present case, which is not the case, as stated, inter alia, in paragraph 75 above.

82 Furthermore, as EUIPO submits, it has been held that, where the goods or services are identical and the earlier mark enjoys enhanced distinctiveness as a result of its use in relation to its goods or services, in order to rule out any likelihood of confusion, the degree of similarity between the signs at issue must be sufficiently low (see, to that effect, judgment of 28 February 2024, Sumol + Compal Marcas v EUIPO – Kåska (smål) , T‑279/23, not published, EU:T:2024:130, paragraph 24). In the present case, the signs at issue are visually similar to an average degree and phonetically similar to at least an above-average degree.

83 It follows that the applicant’s line of argument cannot succeed.

84 In the light of all of the foregoing, the applicant’s single plea in law must be rejected and, accordingly, the action must be dismissed in its entirety.

Costs

85 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.

86 Although the applicant has been unsuccessful, EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened. Since no hearing was held, it is appropriate to order each party to bear its own costs.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1. Dismisses the action;

2. Orders Abacco’s GmbH and the European Union Intellectual Property Office (EUIPO) each to bear their own costs.

Delivered in open court in Luxembourg on 7 October 2026.

* Language of the case: English.