Novavax AB v European Union Intellectual Property Office (T-126/25)

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

21 October 2026 (*)

( EU trade mark – Opposition proceedings – Application for the EU word mark MATRIX-A – Earlier EU figurative mark MATRIX OCULAR – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )

In Case T‑126/25,

Novavax AB, established in Uppsala (Sweden), represented by M. Ateva, lawyer,

applicant,

v

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

defendant,

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

Brill International, SL, established in Barcelona (Spain), represented by J. Gallego Jiménez, E. Sanz Valls, P. Bauzá Martínez and Y. Hernández Viñes, lawyers,

THE GENERAL COURT (Ninth Chamber),

composed of S. Kingston, President, P. Zilgalvis and J. Hettne (Rapporteur), Judges,

Acting Registrar: T. Henze,

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, Novavax AB, seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 10 December 2024 (Case R 2261/2023‑4) (‘the contested decision’).

 Background to the dispute

2        On 6 October 2021, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the word sign MATRIX-A.

3        The mark applied for covered goods in Class 5 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding to the following description: ‘Adjuvants’.

4        On 20 December 2021, the predecessor-in-title of Brill International, SL, the intervener, filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

5        The opposition was based on the earlier EU figurative mark, filed on 18 January 2017 and registered on 7 June 2017 under number 16262362, covering goods in Class 5 corresponding to the following description: ‘Ophthalmologic preparations; pharmaceutical products for ophthalmological use’, as reproduced below:

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        On 14 September 2023, the Opposition Division upheld the opposition.

8        On 6 November 2023, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision.

9        On 15 January 2024, the applicant submitted an application seeking to limit the list of goods designated in the trade mark application solely to ‘adjuvants for enhancing the immune system’s response to vaccines, aimed exclusively at a professional public, of which none of the aforementioned refer to ophthalmological preparations or pharmaceutical products for ophthalmological use’ in Class 5.

10      By the contested decision, the Board of Appeal, first, rejected the request for limitation of the goods covered by the trade mark application and, second, dismissed the appeal. In that regard, it found that, in view of the similarity, albeit low, between the goods at issue, the above-average degree of visual similarity and the high degree of phonetic and conceptual similarity between the signs at issue, as well as the normal inherent distinctiveness of the earlier mark, there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001 on the part of the relevant public, even taking into consideration a higher level of attention.

 Forms of order sought

11      The applicant claims that the Court should:

–        annul the contested decision;

–        order the intervener to pay the costs, including those incurred before the Opposition Division and the Board of Appeal.

12      EUIPO contends that the Court should:

–        dismiss the action;

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

13      The intervener contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs, including those incurred before the Opposition Division and the Board of Appeal.

 Law

14      In support of the action, the applicant relies on a single plea in law, alleging, in essence, infringement of Article 8(1)(b) of Regulation 2017/1001 on the ground that there is no likelihood of confusion. In that regard, the applicant disputes the Board of Appeal’s findings concerning the relevant public and its level of attention, the comparison of the goods, the comparison of the signs and the global assessment of the likelihood of confusion.

15      Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for 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.

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

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

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

 Preliminary observations on the subject matter of the dispute

19      As a preliminary point, it should be noted that the applicant bases its line of argument, in essence, on the adjuvants in Class 5 covered by the mark applied for, defined as vaccine ingredients intended to enhance the immune system’s response to vaccines. In particular, the applicant’s considerations concerning the relevant public and the similarity of the goods at issue refer, in essence, to the goods identified in the request for limitation of the goods designated in the trade mark application, referred to in paragraph 9 above.

20      The applicant justifies that line of argument on account of the actual use of its mark for the highly specialised goods consisting of vaccine adjuvants, as demonstrated by Annexes 5 to 9 to the application.

21      EUIPO disputes, in essence, the premisses on which the applicant bases its claims.

22      In that regard, first, it should be noted that the request for limitation of the list of goods submitted by the applicant, referred to in paragraph 9 above, was rejected in the contested decision and that the applicant does not put forward any argument challenging that rejection in the present action. Therefore, as EUIPO correctly states, the mark in respect of which registration is sought was filed for adjuvants in Class 5, without limitation.

23      Second, for the purposes of assessing whether there is a likelihood of confusion, only the description of the goods in respect of which registration of the mark was sought is relevant. It follows that the specific use made of its sign by the proprietor of the mark applied for is not capable of changing the goods or services taken into account for the purposes of the assessments underlying the finding of the existence of a likelihood of confusion, such as the definition of the relevant public and its level of attention or the similarity between those goods on the part of that public (see, to that effect, judgment of 13 November 2024, Golden Support v EUIPO – Sky International (Skyliner), T‑78/24, not published, EU:T:2024:803, paragraph 64 and the case-law cited).

24      Consequently, the mark in respect of which registration is sought was filed for adjuvants in Class 5, with the result that the goods covered by the mark applied for are not limited to vaccine adjuvants marketed by the applicant.

 The relevant public

25      In the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).

26      The Board of Appeal found, in paragraph 30 of the contested decision, that the relevant public consisted of both the general public and professionals in the medical sector, namely doctors and pharmacists. It found that medical professionals displayed a high level of attention and that the general public also had a higher-than-average level of attention as regards goods which have a medical purpose or can have an impact on health.

27      As a preliminary point, it is necessary to uphold the Board of Appeal’s findings that, first, the relevant territory was that of the European Union and, second, for reasons of procedural economy, the examination of the opposition focused on the English-speaking public. Those findings are moreover not contested by the applicant.

28      The applicant submits, in the first place, in essence, that, contrary to what the Board of Appeal found, the adjuvants covered by the mark applied for are intended exclusively for a professional public, as is shown by the list of goods identified in the request for limitation which it submitted to EUIPO, referred to in paragraph 9 above.

29      In that regard, first of all, it should be borne in mind that the applicant’s request for limitation of the list of goods was rejected during the proceedings before EUIPO (see paragraph 22 above).

30      Furthermore, as regards the adjuvants in Class 5 covered by the mark applied for, it should be noted, as the Board of Appeal did, that the term ‘adjuvant’ has two relevant meanings in relation to those goods, namely, in pharmacy, a medicinal product or other substance that enhances the activity of another and, in immunology, a substance that enhances the immune response stimulated by an antigen when injected with the antigen.

31      Accordingly, the Board of Appeal cannot be criticised for having taken into account, in particular, the first meaning of the term ‘adjuvant’, namely that applicable in the medical and pharmaceutical field in general, for the purposes of determining the relevant public.

32      In that regard, the Board of Appeal correctly found, in paragraphs 40 and 41 of the contested decision, that, first, given that adjuvants were added to enhance the active ingredient of a medicinal product, the goods covered by the mark applied for could be used to manufacture pharmaceutical products and were, to that extent, primarily intended for pharmaceutical undertakings and pharmacies and, second, since adjuvants also included finished medicinal products which could be combined with the intake of other medicinal products as part of a pharmacotherapy regime, those goods were also aimed at patients and healthcare professionals, such as the doctors who prescribe them.

33      That conclusion is consistent with the case-law according to which, where the goods at issue are, as in the present case, pharmaceutical products or substances for medical use, the relevant public consists both of medical professionals, such as the doctors who prescribe the goods in question and the pharmacists who sell them, and of end consumers of those goods (see judgment of 30 November 2022, Mendes v EUIPO – Actial Farmaceutica (VSL3TOTAL), T‑678/21, not published, EU:T:2022:738, paragraph 25 and the case-law cited).

34      Consequently, the Board of Appeal did not make an error of assessment as regards the composition of the relevant public.

35      The applicant submits, in the second place, that the level of attention of the relevant public should have been considered by the Board of Appeal to be high, much higher than average or even very high, given that the goods at issue are complex and highly specialised. First, the list of goods covered by the mark applied for, as amended, is intended exclusively for a professional public and, second, the goods covered by the earlier mark are administered by ocular means to end consumers, with the result that the latter are careful and attentive when purchasing those goods.

36      EUIPO, supported by the intervener, submits that the applicant’s line of argument based on the relevant public’s ‘high’ level of attention is ineffective, since, in the contested decision, the Board of Appeal took that level of attention into account in order to conclude that there was a likelihood of confusion. It adds that, if the applicant’s line of argument were to be understood as being based on the ‘very high’ level of attention of the relevant public, that line of argument would be unfounded.

37      In that regard, as EUIPO did, it must be stated that the applicant did not explain clearly whether it considered that the level of attention of the relevant public should have been considered to be high or very high in the contested decision. Since the applicant’s line of argument lacks the minimum level of clarity and precision required under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 177(1)(d) of the Rules of Procedure of the General Court, it must be declared inadmissible.

38      In any event, and as EUIPO correctly states, it is apparent from the case-law that, in relation to health-related products, the relevant public is likely to display a high or, at least, a higher-than-average level of attention. In that regard, it has been held that both a ‘high level of attention’ and a ‘higher-than-average level of attention’ indicate a heightened level of attentiveness on the part of the relevant public (judgment of 2 March 2022, UGA Nutraceuticals v EUIPO – Vitae Health Innovation (VITADHA), T‑149/21, not published, EU:T:2022:103, paragraphs 27 and 28).

39      Consequently, the Board of Appeal’s assessment that the relevant public displays a high or higher-than-average level of attention for the goods at issue must be upheld.

 The comparison of the goods at issue

40      According to settled 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 (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 23). Other factors may also be taken into account, such as the distribution channels of the goods concerned, or the fact that the goods are often sold in the same specialist sales outlets, which is likely to facilitate the perception by the relevant consumer of the close connections between them and strengthen the perception that the same undertaking is responsible for the production of those goods (see judgment of 2 October 2015, The Tea Board v OHIM – Delta Lingerie (Darjeeling), T‑627/13, not published, EU:T:2015:740, paragraph 37 and the case-law cited; see also, to that effect, judgments of 21 January 2016, Hesse v OHIM, C‑50/15 P, EU:C:2016:34, paragraphs 21 to 23, and of 10 June 2015, AgriCapital v OHIM – agri.capital (AGRI.CAPITAL), T‑514/13, EU:T:2015:372, paragraph 29).

41      In the present case, the Board of Appeal endorsed the Opposition Division’s finding that the goods at issue were similar to a low degree. It found that the goods at issue were pharmaceutical products that do not necessarily have the same therapeutic indication. Nevertheless, it stated that those goods were of the same nature, had the same intended purpose, namely the treatment of human health problems, could be sold through the same distribution channels, such as pharmacies and wholesale outlets which market pharmaceutical products and medical supplies, and came from the same source, namely the pharmaceutical industry. Lastly, it stated that those goods could be aimed at the same public, namely patients and healthcare professionals. The Board of Appeal concluded that, although the goods at issue were neither complementary nor in competition with each other, in view of the elements of similarity cited above, the differences between those goods did not exclude their similarity.

42      The applicant criticises the Board of Appeal for failing to recognise the differences between the goods at issue in the light of certain relevant factors.

43      First, the applicant submits that the Board of Appeal made an error of assessment in finding that the goods at issue were of the same nature. It claims that the fact that those goods are chemical goods intended for treatment does not mean that they are similar. According to the applicant, the mark applied for covers adjuvants, which are substances used to enhance the effect of other pharmaceutical agents, whereas the earlier mark covers specific pharmaceutical products for ophthalmological use.

44      Second, the applicant submits that the intended purpose of the goods at issue is different, in that the intended purpose of the goods covered by the earlier mark, namely the prevention and treatment of eye diseases, is in no way similar to that of the adjuvants covered by the mark applied for, which enhance the efficacy of vaccines.

45      Third, the applicant submits that ophthalmologic preparations and pharmaceutical products for ophthalmological use covered by the earlier mark are administered directly to patients to treat eye diseases, either by healthcare staff or trough self-administration by the individual themselves, whereas the adjuvants covered by the mark applied for are incorporated in other pharmaceutical formulations and are therefore used in the process of manufacturing vaccines, in order to enhance their effects, with the result that the method of use of the goods at issue is different.

46      Fourth, the applicant submits that the Board of Appeal erred in finding that healthcare professionals could prescribe to patients the adjuvants covered by the mark applied for, given that adjuvants are not intended to be supplied directly to patients and end consumers, but only to a professional public, for business-to-business use. In that regard, the applicant’s adjuvants are not available for purchase for individuals, but only for highly skilled professionals at pharmaceutical undertakings and in particular highly specialised purchasers operating in the vaccine manufacturing industry. In addition, an ordinary consumer does not know either the meaning of the term ‘adjuvant’ or the intended purpose of that product and never uses an adjuvant as such, since he or she cannot obtain it or have it prescribed. As for the goods covered by the earlier mark, those are aimed at both end consumers and businesses who would exercise care and caution when purchasing eye-care products.

47      Fifth, the applicant submits that the distribution channels of the goods at issue are different. Ophthalmologic preparations and pharmaceutical products for ophthalmological use, covered by the earlier mark, are distributed in pharmacies, hospitals and clinics specialising in eye care, whereas the adjuvants of the mark applied for are not available in pharmacies or wholesale outlets, since they are sold directly to laboratories, pharmaceutical undertakings and research institutions. Thus, it would be illogical to sell adjuvants separately through pharmacies or wholesale outlets, since they are of no practical use to end consumers.

48      EUIPO and the intervener dispute the applicant’s claims.

49      In that regard, it should be borne in mind that, according to the case-law, goods such as medicines have the same nature (pharmaceutical products), purpose (treatment of human health problems), consumers (medical professionals and patients) and distribution channels (typically pharmacies). This is apparent from the goods at issue belonging to the same general category of goods: medicines. However, this is a very wide category and includes goods which may be different. Thus it must be concluded that medicines belonging to the same general category of goods only allow the finding of a low degree of similarity between all the medicines (judgment of 15 December 2010, Novartis v OHIM – Sanochemia Pharmazeutika (TOLPOSAN), T‑331/09, EU:T:2010:520, paragraph 35).

50      In the present case, as a preliminary point, there is no need to call into question the Board of Appeal’s findings that, first, the goods at issue are neither in competition with each other nor complementary and, second, those goods have different therapeutic indications, namely, for adjuvants for medical use in general covered by the mark applied for, enhancing the efficacy of another substance or medicinal product and, for ophthalmologic preparations and pharmaceutical products for ophthalmological use covered by the earlier mark, the treatment of eye diseases. Moreover, those assessments are not, in essence, disputed by the applicant.

51      As regards, first, the nature of the goods at issue, it must be stated, as is apparent from the considerations set out in paragraph 30 above, that an adjuvant, at least in the first meaning given to that term by the Board of Appeal, has the same pharmaceutical or medical nature as ophthalmologic preparations or pharmaceutical products for ophthalmological use covered by the earlier mark.

52      Furthermore, the goods at issue are intended for therapeutic purposes, as the applicant itself acknowledges. Thus, as regards, second, the intended purpose of the goods at issue, the Board of Appeal correctly found that, while being specific pharmaceutical products, they had the same general purpose, namely the treatment of human health problems.

53      As regards, third, the method of use of the goods at issue, it must be stated that the Board of Appeal did not rely on that factor for the purposes of comparing those goods. Furthermore, even if that factor should have been taken into account in that comparison, the Court has already held that the argument that differently administered pharmaceutical products were not similar, given that that difference cannot dominate the common nature and intended purpose of the goods concerned, had to be rejected (judgment of 17 November 2005, Biofarma v OHIM – Bausch & Lomb Pharmaceuticals (ALREX), T‑154/03, EU:T:2005:401, paragraph 50).

54      As regards, fourth, the relevant public for the goods at issue, it must be stated that the applicant does not dispute that they are intended for the professional public. More specifically, it does not dispute the Board of Appeal’s assessment, in paragraph 40 of the contested decision, that, in so far as adjuvants may be used to manufacture pharmaceutical products, those adjuvants are primarily intended for pharmaceutical undertakings, but also for licensed pharmacists, who are employed in pharmacies offering services for the compounding or creation of pharmaceutical products. It should be borne in mind that the first meaning of the term ‘adjuvant’ refers, in pharmacy, to a medicinal product or other substance that enhances the activity of another (medicinal product) (see paragraph 30 above), which supports the Board of Appeal’s assessment that the adjuvants covered by the mark applied for may be used to manufacture pharmaceutical products.

55      As regards the Board of Appeal’s assessment in paragraph 41 of the contested decision, according to which the adjuvants covered by the mark applied for are also aimed at patients and healthcare professionals such as doctors, it must be stated that the premiss on which the Board of Appeal bases that assessment is also consistent with the first meaning of the term ‘adjuvant’ referred to in paragraph 30 above, according to which, in pharmacy, that term refers to a medicinal product or other substance that enhances the activity of another, including finished medicinal products which can be combined with the intake of other medicinal products as part of a pharmacotherapy regimen. Thus, in so far as such pharmaceutical products are likely to be subject to a medical prescription as part of a pharmacotherapy regimen, the relevant public is, contrary to what the applicant claims, also composed of end consumers and healthcare professionals, that is to say, doctors who prescribe medicinal products and pharmacists who sell them.

56      In the light of the considerations set out in paragraphs 54 and 55 above and in paragraphs 32 to 34 above, the Board of Appeal did not make an error of assessment in concluding that the goods at issue could be aimed at the same public, namely both pharmaceutical undertakings and licensed pharmacists, as well as patients and healthcare professionals such as doctors.

57      As regards, fifth, the marketing channels of the goods at issue, it should be noted that, in their first meaning accepted by the Board of Appeal, referred to in paragraph 30 above, the adjuvants covered by the mark applied for are of practical use to end consumers, who, as patients, will generally be able to obtain them in pharmacies, contrary to what the applicant claims. Furthermore, it cannot be ruled out that such adjuvants may be found in the same wholesale outlets as the goods covered by the earlier mark, given that those outlets are logistic intermediaries between the pharmaceutical undertakings which produce the goods at issue and pharmacies. Accordingly, the Board of Appeal did not make an error of assessment in stating, in paragraph 39 of the contested decision, that the goods at issue could be sold in the same pharmacies and the same wholesale outlets which market pharmaceutical products and medical supplies.

58      Furthermore, as EUIPO did, it is necessary to confirm the Board of Appeal’s assessment, which the applicant does not dispute, that the goods at issue come from the same source, namely the pharmaceutical industry, and are likely to be manufactured by the same pharmaceutical undertaking.

59      Furthermore, the Court has already held, in relation to pharmaceutical products, that despite the difference relating to the therapeutic indications or the specific intended purpose of those goods, those goods were similar to at least a low degree, provided that the other factors of similarity were present (see, to that effect, judgments of 17 October 2006, Armour Pharmaceutical v OHIM – Teva Pharmaceutical Industries (GALZIN), T‑483/04, EU:T:2006:323, paragraphs 70 and 71, and of 28 May 2020, Aurea Biolabs v EUIPO – Avizel (AUREA BIOLABS), T‑724/18 and T‑184/19, EU:T:2020:227, paragraphs 60 and 62). It is sufficient to note, in the present case, that the Board of Appeal did not make an error of assessment in finding that the goods at issue were of the same nature, had the same general intended purpose, were aimed at the same consumers and used the same distribution channels.

60      It follows from the foregoing considerations that, having regard to the elements of similarity between the goods at issue set out above and notwithstanding the differences relating to their respective therapeutic indications and the fact that they are neither in competition with each other nor complementary, the Board of Appeal did not make an error of assessment in concluding that those goods were similar to a low degree.

 The comparison of the signs at issue

61      According to the case-law, the global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs, 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).

62      In particular, 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 at issue 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. 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 8 March 2018, Claro Sol Cleaning v EUIPO –  Solemo (Claro Sol Facility Services desde 1972), T‑159/17, not published, EU:T:2018:123, paragraph 33; see also, to that effect, judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraphs 42 and 43).

63      In the present case, before addressing the question of the visual, phonetic and conceptual similarity of the marks at issue, it is necessary to examine the Board of Appeal’s assessment of their distinctive and dominant elements.

 The distinctive and dominant elements of the signs at issue

64      The Board of Appeal found, first, that the most distinctive and dominant element of the earlier mark was the word element ‘matrix’, but that the circular figurative element, although not likely to be perceived as an eye by the relevant public, would not be ignored in the overall impression and, second, that the most distinctive elements of the mark applied for were the element ‘matrix’ followed by the letter ‘a’.

65      In addition, the Board of Appeal found that the word element ‘ocular’ in the earlier mark was descriptive of the nature of the goods covered by that mark, namely ophthalmologic preparations and pharmaceutical products for ophthalmological use.

66      The applicant disputes, in essence, the Board of Appeal’s assessment relating to the earlier mark and states that the dominant elements of that mark are the blue elements, namely the element ‘ocular’ relating to the eyes and the circular figurative element representing a stylised eye.

67      EUIPO and the intervener dispute the applicant’s line of argument.

68      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. It follows that the determination of the dominant character of an element within a composite trade mark depends on a fact-based assessment of the various elements that go to make up the sign and is therefore not dependent on the nature of the sign in question (see, to that effect, judgment of 20 May 2014, Argo Group International Holdings v OHIM –  Arisa Assurances (ARIS), T‑247/12, EU:T:2014:258, paragraphs 35 and 36).

69      Moreover, owing to their low, or even very low, distinctive character, descriptive elements of a trade mark are not generally regarded by the public as being dominant in the overall impression conveyed by that mark, unless, particularly because of their position or their size, they appear likely to make an impression on consumers and to be remembered by them (see, to that effect, judgment of 3 September 2010, Companhia Muller de Bebidas v OHIM –  Missiato Industria e Comercio (61 A NOSSA ALEGRIA), T‑472/08, EU:T:2010:347, paragraph 49 and the case-law cited).

70      In that regard it must be pointed out that, although the distinctive character of an element of a sign must be taken into consideration in determining whether that element may be dominant, the fact remains that the size and colour are also among the intrinsic qualities of the element in question which must be taken into consideration for the purposes of that assessment, as well as, accessorily, the relative position of the various components within the arrangement of the mark (see judgment of 19 June 2019, Marriott Worldwide v EUIPO – AC Milan (AC MILAN), T‑28/18, not published, EU:T:2019:436, paragraph 46 and the case-law cited).

71      As regards, first, the distinctive and dominant character of the word elements of the earlier mark, first of all, as EUIPO correctly states, the relevant public will break down the earlier mark into two words, namely ‘matrix’ and ‘ocular’, both of which have a different meaning for that public and are represented by two different colours. Although, according to the case-law cited in paragraph 61 above, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, when perceiving a word sign, he or she will break it down into elements which, for him or her, suggest a concrete meaning or which resemble words known to him or her (see judgment of 8 July 2010, Engelhorn v OHIM – The Outdoor Group (peerstorm), T‑30/09, EU:T:2010:298, paragraph 60 and the case-law cited).

72      Next, it is necessary to uphold the Board of Appeal’s assessment, which the applicant does not dispute, that the word element ‘ocular’ of the earlier mark is descriptive for ophthalmologic preparations and pharmaceutical products for ophthalmological use covered by that mark, given that the relevant English-speaking public will directly perceive the term ‘ocular’ as relating to the eyes or the ability to see.

73      Lastly, although the case-law set out in paragraphs 70 and 71 above requires account to be taken of the intrinsic qualities and relative positions of the components of a sign, the descriptive element ‘ocular’, although it differs in its blue colour from the element ‘matrix’ in black, is of the same size and is written in the same typeface as that element and is not placed in such a position that it should be regarded by the relevant public as being dominant in the overall impression created by the earlier mark.

74      As regards, second, the figurative element of the earlier mark, it should be borne in mind that, where a trade mark consists of word and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more readily refer to the goods in question by quoting the name of the mark than by describing the figurative element of that mark (see judgment of 22 May 2008, NewSoft Technology v OHIM – Soft (Presto! Bizcard Reader),  T‑205/06, not published, EU:T:2008:163, paragraph 54 and the case-law cited).

75      That is the case here, since the circular figurative element of the earlier mark, contrary to what the applicant claims, will be perceived by the relevant public as a decorative element. Indeed, that figurative element does not appear to be original or very elaborate, given that it is a simple graphical shape, namely two circles with a dot inside. Moreover, the use of the colour blue is common in the field of medicine and healthcare (see, to that effect, judgment of 6 April 2022, Moio v EUIPO – Paul Hartmann (moio.care), T‑276/21, not published, EU:T:2022:221, paragraph 63). The Board of Appeal was therefore correct in finding that that element had limited distinctive character.

76      As EUIPO correctly points out, the applicant’s argument that the figurative element of the earlier mark represents an eye cannot call that assessment into question, given that, if that element were perceived as an eye, it would be regarded as descriptive of ophthalmologic preparations and pharmaceutical products for ophthalmological use covered by the earlier mark, thereby reinforcing the conclusion that the element ‘matrix’ is the most distinctive and dominant element of the earlier mark.

77      Consequently, the Board of Appeal did not make an error of assessment in finding that the most distinctive and dominant element of the earlier mark was the word element ‘matrix’, whereas the circular figurative element will not be ignored in the overall impression it creates. Furthermore, it is necessary to uphold the Board of Appeal’s findings, which, moreover, are not disputed by the applicant, that the most distinctive elements of the mark applied for were the element ‘matrix’ followed by the letter ‘a’.

 The visual similarity

78      The Board of Appeal found that the signs at issue were visually similar to an above-average degree. It found, first, that the signs coincided in their common distinctive element ‘matrix’, placed at the beginning of their respective word elements. It then found that those signs differed in the circular figurative element and the word element ‘ocular’ of the earlier mark, as well as in the colours and stylisation of that mark, which, however, played a secondary role because of their descriptive or purely decorative character. Lastly, it added that those signs differed in the letter ‘a’ at the end of the mark applied for.

79      The applicant disputes the Board of Appeal’s assessment and submits that the visual differences outweigh any similarities. It submits that the black and blue circular figurative element, representing an eye, and the blue word element ‘ocular’ are visually more perceptible than the other elements of the earlier mark, with the result that the black word element ‘matrix’ in that mark will not be immediately recognised. In addition, the applicant submits that the word elements ‘matrix’ and ‘ocular’ appear to be joined to form a sequence of 12 letters. Furthermore, the suffix ‘ocular’ of the earlier mark is different from the suffix ‘a’ of the mark applied for, with the result that the marks at issue differ visually and phonetically.

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

81      In that regard, first, according to the case-law, two marks may be regarded as similar where, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (judgment of 8 September 2010, Quinta do Portal v OHIM – Vallegre (PORTO ALEGRE), T‑369/09, not published, EU:T:2010:362, paragraph 21).

82      Second, it must be stated that the applicant’s arguments, based on the premiss that the element ‘ocular’ is dominant in the earlier mark, are not capable of calling into question the Board of Appeal’s assessment of the visual similarity of the marks at issue. As has been stated in paragraphs 71 to 77 above, the element common to the two marks at issue, ‘matrix’, is the most distinctive and dominant element of the earlier mark, whereas the word element ‘ocular’ and the circular figurative element of that mark play only a secondary role in the overall impression of that mark, on account, respectively, of their descriptive and decorative characters.

83      Thus, as regards the word element ‘ocular’, in view of its size and position in the earlier mark, the relevant public will attach less importance to it. Furthermore, as regards the circular figurative element of the earlier mark, that element, although not entirely negligible, will not be such as to leave a sufficient impression on the relevant public to offset the overall impression of visual similarity created by the common word element ‘matrix’.

84      Furthermore, as EUIPO did, it must be pointed out that, in view of the significance of the word element ‘matrix’ in the overall impression created by the earlier mark and the considerations set out in paragraph 71 above, it cannot validly be maintained that the word element of that mark will be perceived by the relevant public as a single word of 12 letters, without being broken down into the element ‘matrix’ and the element ‘ocular’.

85      It follows that, although the differences between the respective secondary elements of the marks at issue ‘ocular’ and ‘a’ are perceptible by the relevant public, they cannot outweigh the visual similarities of those marks, with the result that the Board of Appeal did not make an error of assessment in finding that there was an above-average degree of visual similarity.

 The phonetic similarity

86      The Board of Appeal found that the signs at issue coincided in the pronunciation of the common distinctive element ‘matrix’ and differed, first, in the pronunciation of the descriptive element ‘ocular’ of the earlier mark, provided that it would be pronounced, given that, in general, that would not be the case, and, second, in the pronunciation of the letter ‘a’ of the mark applied for. It concluded that the signs at issue were phonetically similar to a high degree.

87      The applicant disputes the Board of Appeal’s assessment and submits that the earlier mark, perceived as a single word ‘matrixocular’, and the mark applied for MATRIX-A are not particularly similar. It submits that, even if the earlier mark could be broken down into two separate words, the last parts of each mark, namely ‘ocular’ and ‘a’, are different.

88      EUIPO and the intervener dispute the applicant’s line of argument.

89      In that regard, it is necessary to uphold the Board of Appeal’s assessment that the pronunciation of the marks at issue coincides in the pronunciation of their common distinctive element ‘matrix’, which, moreover, is not disputed by the applicant.

90      Furthermore, as stated in paragraph 71 above, the element ‘matrix’ will be perceived, in the earlier mark, separately from the element ‘ocular’. As the Board of Appeal correctly states, because of the descriptive character of the latter element, the relevant public will tend rather to pronounce only the distinctive and dominant word element ‘matrix’. The Board of Appeal also correctly pointed out that the circular figurative element of the earlier mark will not be pronounced. It must therefore be held that, in the overall impression created by that mark, the relevant public will attach more importance to the pronunciation of the element ‘matrix’. Lastly, as regards the mark applied for, it is not disputed that the hyphen separating the element ‘matrix’ and the letter ‘a’ will probably not be pronounced.

91      Therefore, in view of the identity of the common element ‘matrix’, the differences between the signs at issue resulting from the element ‘ocular’ and the letter ‘a’ are not sufficient to dispel, on the part of the relevant public, the impression that those signs, assessed globally, have a high degree of phonetic similarity.

 The conceptual similarity

92      The Board of Appeal found that the signs at issue would be associated with the concept of the common word element ‘matrix’ and that the meaning of the word element ‘ocular’ in the earlier mark had very little impact because of its descriptive character. In addition, it found that the letter ‘a’ of the mark applied for did not convey any concept, with the result that no conceptual comparison was possible with regard to that letter. It inferred from this that the signs at issue were conceptually similar to a high degree.

93      The applicant disputes the Board of Appeal’s assessment and submits that the word element ‘matrix’ does not create any conceptual similarity, in so far as it does not convey a clear indication as to the goods at issue and their intended purpose. It adds that, because of its obvious meaning, the word element ‘ocular’ in the earlier mark will suggest goods relating to eyes or sight. Furthermore, the fact that the intervener uses another mark, MaTRIXocular3, for eye drops reinforces the applicant’s argument that, first, there is a close link between the earlier mark, also used for that type of ophthalmologic product, and eye-care products, and, second, the actual use of the earlier mark is not emphasising the element ‘matrix’, but the group of letters ‘trix’. Lastly, the association of the earlier mark with eyes and sight is reinforced by the presence in that mark of the circular figurative element representing an eye.

94      EUIPO and the intervener dispute the applicant’s line of argument.

95      In that regard, as regards the meaning of the element common to the signs at issue ‘matrix’, as the Board of Appeal stated in paragraph 48 of the contested decision without being challenged by the applicant, that element refers to a substance, situation or environment in which something has its origin, takes form or is enclosed, or the intercellular substance of bone, cartilage, connective tissue, and so forth. It must therefore be held that, irrespective of the fact that that element does not convey any clear indication as to the goods at issue, it conveys, in the two marks at issue, an identical concept for the relevant public.

96      It is true that the fact that, in view of its meaning, the word element ‘ocular’ has a very weak or even non-existent distinctive character does not mean that the relevant public would disregard that word element and that it should therefore not be taken into account when carrying out a conceptual comparison of the signs at issue. It is, moreover, common ground that that public will attribute a meaning to it, even if that meaning has a link with the goods at issue. Therefore, the applicant is correct in pointing out that, in view of its meaning, the element ‘ocular’ will suggest goods used in connection with eyes or sight. Nevertheless, it must be borne in mind that conceptual differences attributable solely to elements that are weakly distinctive attract consumers’ attention only in a limited manner (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). That is so in the present case with respect to the word element ‘ocular’.

97      That conclusion must also be drawn in respect of the circular figurative element, given that it will be perceived by the relevant public as purely decorative and as having a limited degree of distinctiveness. A fortiori, in the situation referred to in paragraph 76 above, where that figurative element was perceived by that public as representing an eye, the descriptive character of that element would further limit its impact on the conceptual comparison of the marks at issue.

98      As regards the letter ‘a’ preceded by a hyphen, present in the mark applied for, it should be noted that, irrespective of whether a letter of the alphabet may have an intrinsic semantic content, in the present case, as the Board of Appeal found, in essence, the applicant neither indicated what the intrinsic semantic content of the letter ‘a’ would be, nor demonstrated that that letter had a particular meaning in one of the languages of the European Union.

99      Lastly, the applicant’s argument that the intervener uses a mark resembling the earlier mark, namely MaTRIXocular3, for eye drops is irrelevant in the comparison of the signs at issue. Indeed, as EUIPO correctly states, when assessing their identity or similarity, the signs must be compared in the form in which they are protected, that is, as they were registered or as they appear in the application for registration. The actual or possible use of the registered marks in another form is irrelevant when comparing signs (see judgment of 29 November 2023, Beauty Boutique v EUIPO – Lightningbolt Europe (Representation of a lightning bolt), T‑12/23, not published, EU:T:2023:768, paragraph 43 and the case-law cited). In any event, the descriptive character of the element ‘ocular’, also present in that mark, leads to the same conclusion that that element has a very limited impact on the conceptual comparison of the signs at issue.

100    It must therefore be held that the Board of Appeal did not make an error of assessment in finding that the marks at issue were conceptually similar to a high degree.

 The distinctiveness of the earlier mark

101    The Board of Appeal concluded that the degree of inherent distinctiveness of the earlier mark was normal. There is nothing in the file which is capable of calling into question that assessment, which is not, moreover, disputed by the parties.

 The likelihood of confusion

102    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).

103    In view of the similarity, albeit low, of the goods at issue, an above-average visual similarity and a high degree of phonetic and conceptual similarity, as well as the normal degree of distinctiveness of the earlier mark, the Board of Appeal concluded that there was a likelihood of confusion on the part of the relevant English-speaking public, even taking into consideration a higher level of attention of that public.

104    The applicant disputes the Board of Appeal’s assessment and submits that there is no likelihood of confusion, on account of the high level of attention of the relevant public and the fact that the goods at issue (explicitly excluding the goods covered by the earlier mark following the limitation which it submitted to EUIPO) are dissimilar, that visual and phonetic differences outweigh any similarities in those respects and that there is no relevant conceptual similarity, given that the earlier mark indicates, owing in particular to the element ‘ocular’, that it is associated with eye-care products, whereas the mark applied for is devoid of such an association.

105    EUIPO and the intervener dispute the applicant’s line of argument.

106    In the present case, it is apparent from paragraphs 60, 85, 91 and 100 above that the Board of Appeal correctly found that the goods at issue were similar to a low degree whereas the marks at issue were visually similar to an above-average degree and phonetically and conceptually similar to a high degree. In the light of those factors and the normal inherent distinctiveness of the earlier mark, the premisses of the applicant’s reasoning, seeking to establish that there is no likelihood of confusion, are therefore incorrect.

107    Furthermore, the fact that the level of attention of the relevant public with regard to the goods in Class 5 is high cannot call into question the existence of a likelihood of confusion. In accordance with the case-law, even with regard to a public displaying a high level of attention, the average consumer only rarely has the chance to compare the various marks directly and must therefore rely on his or her imperfect recollection of them (see judgment of 23 March 2022, Vetpharma Animal Health v EUIPO – Deltavit (DELTATIC), T‑146/21, not published, EU:T:2022:159, paragraph 121 and the case-law cited).

108    In the present case, even if the relevant public will be more likely to perceive the differences between the signs at issue than a public with only an average or low level of attention, it must be borne in mind that the differences between the marks at issue, resulting from the circular figurative element and the word element ‘ocular’, have, because of their weak or non-distinctive character, a lesser influence on the overall impression created by those marks, with the result that, contrary to what the applicant claims, those differences cannot outweigh the overall impression of similarity resulting from the common element ‘matrix’.

109    Thus, even if the relevant public were to remember the differences between the marks at issue, it is conceivable that, on account of the presence of the common element ‘matrix’ in those marks, that public would consider that the goods at issue come from the same undertaking or from economically linked undertakings.

110    It follows that the Board of Appeal was fully entitled to find that there was a likelihood of confusion on the part of the relevant public within the meaning of Article 8(1)(b) of Regulation 2017/1001, even taking into account the high level of attention of that public.

111    Consequently, the single plea in law must be rejected and the action must be dismissed in its entirety.

 Costs

112    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.

113    Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the latter.

114    By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is held, EUIPO must, in the absence of a hearing, be ordered to bear its own costs.

115    In addition, the intervener also contended that the applicant should be ordered to reimburse the costs incurred before the Opposition Division and the Board of Appeal.

116    In that regard, first, it must be recalled that, under Article 190(2) of the Rules of Procedure, only costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal are to be regarded as recoverable costs. It follows that the costs incurred for the purposes of the proceedings before the Opposition Division cannot be regarded as recoverable costs (see, to that effect, judgment of 27 January 2021, Turk Hava Yollari v EUIPO – Sky (skylife), T‑382/19, not published, EU:T:2021:45, paragraph 56 and the case-law cited). Therefore, the intervener’s claim must be rejected in so far as it seeks to have the applicant bear the costs incurred before the Opposition Division.

117    Second, in so far as the intervener’s request concerns the costs of the proceedings before the Board of Appeal, it is sufficient to note that, since the present judgment dismisses the action brought against the contested decision, it is the operative part of the contested decision which continues to determine the costs in question (see, to that effect, judgment of 27 January 2021, skylife, T‑382/19, not published, EU:T:2021:45, paragraph 57 and the case-law cited).

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Novavax AB to bear its own costs and to pay those incurred by Brill International, SL;

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

Kingston

Zilgalvis

Hettne

Delivered in open court in Luxembourg on 21 October 2026.

T. Henze

S. Papasavvas

Acting Registrar

President

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*      Language of the case: English.