Novomatic AG v European Union Intellectual Property Office (T-786/25)

JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

21 October 2026 (*)

( EU trade mark – Invalidity proceedings – Application for EU figurative mark EXTRA STARS – Earlier EU figurative mark Power Stars – Relative ground for invalidity – Absence of a likelihood of confusion – Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 )

In Case T‑786/25,

Novomatic AG, established in Gumpoldskirchen (Austria), represented by W. Mosing, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by T. Frydendahl, acting as Agent,

defendant,

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

Euro Games Technology OOD, established in Sofia (Bulgaria), represented by K. Manev, lawyer,

THE GENERAL COURT (Fifth Chamber),

composed of M. Sampol Pucurull, President, J. Laitenberger and M. Stancu (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, Novomatic AG, seeks the annulment and alteration of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 September 2025 (Case R 1086/2025‑2) (‘the contested decision’).

 Background to the dispute

2        On 18 April 2019, the applicant filed with EUIPO an application for a declaration of invalidity in respect of the EU trade mark which had been registered following an application filed on 20 November 2015 in respect of the following figurative sign:

3        Following the restriction made in the course of the proceedings before EUIPO, the goods and services covered by the contested mark in respect of which a declaration of invalidity was sought were in Classes 9, 28 and 41 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and corresponded, for each of those classes, to the following description:

–        Class 9: ‘Software for gambling; games software for gambling; computer software for gambling; computer application software for gambling; virtual reality software for gambling; software programs for video games in the field of gambling; computer software that permits games to be played in the field of gambling; computer hardware for gambling; apparatus for recording images in the field of gambling; apparatus for the transmission of images in the field of gambling; apparatus for the transmission of sound in the field of gambling; recorded computer game programs in the field of gambling’;

–        Class 28: ‘Gaming machines for gambling; gambling chips; mah-jong; arcade games; amusement machines, operated by inserting coins, notes and cards; coin-operated amusement gaming machines; games; lottery wheels; electronic games; parlour games; gaming chips; board games; slot machines [gaming machines]; LCD game machines; slot machines [gaming machines]; coin-operated amusement machines; roulette chips; poker chips; chips and dice (gaming equipment)’;

–        Class 41: ‘Gambling; gambling; gaming services for entertainment purposes; casino, gaming and gambling services; training in the development of software systems; providing gaming house facilities; casino facilities (gambling); gaming machine entertainment services; casino facilities [gambling] (providing -); amusement arcades; amusement arcade services; games equipment rental; games equipment rental; providing amusement arcade services; games equipment rental; editing or recording of sounds and images; sound recording and video entertainment services; hire of sound reproducing apparatus; providing of casino and gaming facilities’.

4        The application for a declaration of invalidity was based on the earlier EU figurative mark registered on 21 January 2010, covering, further to two revocation proceedings that have become final, ‘software, in particular for casino and amusement arcade games, gaming machines, slot machines, video lottery gaming machines or games of chance via the Internet’ in Class 9, reproduced below:

5        The ground relied on in support of the application for a declaration of invalidity was that set out in Article 53(1)(a) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1) (now Article 60(1)(a) 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)), read in conjunction with Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).

6        Following a request made by the intervener, Euro Games Technology OOD, before the Board of Appeal in accordance with Article 64(2) of Regulation 2017/1001, EUIPO invited the applicant to furnish proof of genuine use of the earlier mark which had been relied on in support of the application for a declaration of invalidity. The applicant complied with that request within the time limit set.

7        On 16 April 2025, the Cancellation Division granted the application for a declaration of invalidity in part by declaring the contested mark invalid in respect of the goods and services in Classes 9, 28 and 41 referred to in paragraph 3 above, with the exception of the following services in Class 41: ‘Training in the development of software systems; providing gaming house facilities; casino facilities (gambling); gaming machine entertainment services; casino facilities [gambling] (providing -); games equipment rental; games equipment rental; games equipment rental; editing or recording of sounds and images; sound recording and video entertainment services; hire of sound reproducing apparatus; providing of casino and gaming facilities’. The registration of the contested mark was maintained in respect of those services.

8        On 13 June 2025, the intervener filed a notice of appeal with EUIPO against the Cancellation Division’s decision in so far as the latter declared the contested mark invalid in respect of the goods and services referred to in paragraph 3 above.

9        By the contested decision, the Board of Appeal upheld the appeal, finding that, in accordance with the principle of interdependence, despite the identity and similarity of the goods and services at issue, there was no likelihood of confusion on the part of the relevant public, whose level of attention varied from average to high, having regard in particular to the low degree of similarity between the marks at issue resulting from a common element with a weak distinctive character.

 Forms of order sought

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

–        annul the contested decision;

–        alter the contested decision;

–        order EUIPO and the intervener, if the latter submits written observations, to pay the costs before the Court and before the Board of Appeal.

11      EUIPO contends that the Court should:

–        dismiss the action;

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

12      The intervener contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

13      As a preliminary point, given the date on which the application for registration at issue was filed, namely 20 November 2015 (see paragraph 2 above), which is decisive with regard to applications for a declaration of invalidity of trade marks for the purpose of identifying the applicable substantive law, it must be noted that the facts of the case are governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, order of 5 October 2004, Alcon v OHIM, C‑192/03 P, EU:C:2004:587, paragraphs 39 and 40, and judgment of 23 April 2020, Gugler France v Gugler and EUIPO, C‑736/18 P, not published, EU:C:2020:308, paragraph 3 and the case-law cited). Furthermore, since, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the case is governed by the procedural provisions of Regulation 2017/1001.

14      Consequently, in the present case, so far as concerns the substantive rules, the references to Article 8(1)(b) and Article 60(1)(a) of Regulation 2017/1001 made by the Board of Appeal in the contested decision and by the parties in their written pleadings must be understood as referring to Article 8(1)(b) and Article 53(1)(a) of Regulation No 207/2009, the wording of which is substantively identical.

 The goods and services forming the subject of the action

15      It must be held, as EUIPO points out, that, by its application for alteration, the applicant seeks to have the Court grant its application for a declaration of invalidity in its entirety so that registration of the contested mark is refused in respect of all the goods and services covered by that mark.

16      In that regard, it should be noted, first, that the Cancellation Division did not grant the applicant’s application for a declaration of invalidity in respect of some of the services in Class 41 referred to in paragraph 7 above, with the result that, in accordance with Article 67 of Regulation 2017/1001, the appeal brought by the intervener against the Cancellation Division’s decision before the Board of Appeal did not include those services. Under Article 67 of that regulation, in essence, an appeal may be brought before the Board of Appeal against a decision taken by a lower department of EUIPO only in so far as that decision has rejected a claim or application. Secondly, the applicant did not, for its part, bring a cross-appeal before the Board of Appeal capable of extending the scope of the action beyond all the goods and services that were already the subject of the proceedings before the Board of Appeal. Thus, it must be held that the Cancellation Division’s decision has become final in respect of the services in Class 41 for which registration of the contested mark was maintained.

17      In any event, the applicant does not raise any specific complaint or argument before the Court concerning the findings of the adjudicating bodies of EUIPO relating to those services in Class 41.

18      Consequently, the services in Class 41 referred to in paragraph 7 above in respect of which the application for a declaration of invalidity was rejected by the Cancellation Division are not the subject of the present action.

 The head of claim seeking annulment of the contested decision

19      In support of its first head of claim, the applicant puts forward a single plea in law, alleging infringement of Article 53(1)(a) of Regulation No 207/2009, read in conjunction with Article 8(1)(b) thereof, in so far as the Board of Appeal found that there was no likelihood of confusion. It submits, in essence, that the Board of Appeal erred in its assessment of the level of attention of the relevant public, the similarity of the marks at issue and the overall impression given by them, as well as in the global assessment of the likelihood of confusion, in particular. More specifically, the applicant submits, first, that the relevant public displays a low, or even very low, level of attention or a level of attention that is average at best. Secondly, it submits that, by incorrectly assuming a level of attention ranging from average to high, the Board of Appeal relied on the erroneous assumption that the relevant public will focus more on the minor differences in the beginnings of the signs, their colours, their typefaces and their figurative elements. Thirdly, the applicant submits, in essence, that the signs at issue produce similar, or even highly similar, overall impressions, given the conceptual similarity between the signs. Consequently, in its view, having regard to the similarity or identity of the goods and services at issue, the distinctive character of the earlier mark, the conceptual similarity of the marks at issue and the common word element ‘stars’, even if that element has a low degree of distinctiveness, there exists a likelihood of confusion in so far as (i) the other word elements of the marks at issue, which are different from one another, have an equally low, or even lower, degree of distinctiveness as the element ‘stars’ and (ii) the marks at issue produce similar overall impressions.

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

21      Under the combined provisions of Article 53(1)(a) and Article 8(1)(b) of Regulation No 207/2009, an EU trade mark is to be declared invalid where, 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.

22      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).

23      For the purpose of applying Article 8(1)(b) of Regulation No 207/2009, 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, to that effect, 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).

24      It is in the light of those considerations that it must be examined whether the Board of Appeal was correct in finding that there was no likelihood of confusion on the part of the relevant public for the purposes of Article 8(1)(b) of Regulation No 207/2009.

25      As a preliminary point, as regards the Board of Appeal’s findings concerning the comparison of the goods and services at issue and the average inherent distinctiveness of the earlier mark, it should be noted that they are not disputed by the applicant.

 The relevant public

26      According to the case-law, 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).

27      Where the services covered by the two marks at issue are intended for the same relevant public, which comprises both the general public and professionals, the public with the lowest level of attention must be taken into consideration (see judgment of 20 May 2014, Argo Group International Holdings v OHIM – Arisa Assurances (ARIS), T‑247/12, EU:T:2014:258, paragraphs 28 and 29 and the case-law cited).

28      In the present case, the Board of Appeal found, in paragraphs 26 and 27 of the contested decision, that the relevant territory for the purpose of assessing the likelihood of confusion was that of the European Union and that the goods and services at issue were aimed in part at the general public and in part at a public of specialists, in particular in the gaming and gambling industry. It found that the level of attention of the relevant public varied from average to high, according to the goods and services concerned, emphasising that the level of attention was high for sophisticated apparatuses, machines or services relating to gambling.

29      The applicant does not call into question the Board of Appeal’s finding that the relevant territory is that of the European Union. Nor does it dispute that, overall, the goods and services at issue are also aimed at a public of specialists; it does submit, however, that they are mainly aimed at the general public composed of classic consumers who use the goods in question by going to a casino or an amusement venue. According to the applicant, when a consumer plays a software slot game that is installed on a gaming machine located in a casino, that consumer does not notice minor differences in the names of games in so far as the games are never displayed side by side, are intended for amusement only, regularly require only a small amount of money and are made available to consumers in casinos or amusement venues where there are a lot of visual and acoustic distractions. Therefore, the general public displays a low, or even very low, level of attention or a level of attention that is average at best, including in respect of software, machines and apparatuses for gambling.

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

31      It should be noted, as a preliminary point, that the goods and services covered by the marks at issue and found to be identical or similar by the Board of Appeal correspond, in essence, to software, apparatuses, machines, games and services in Classes 9, 28 and 41 related to gambling.

32      In the first place, as regards the definition of the relevant public, it should be noted, first, that some of the goods in Classes 9, 28 and 41 are aimed at the general public, such as the various categories of gambling, gaming equipment and other more general categories of goods, such as apparatuses for recording or the transmission of sound or images and computer hardware for gambling. Secondly, it must be held that a large part of the goods and services in Classes 9, 28 and 41 are linked to the commercial activities of casinos, amusement arcades or other gaming facilities, with the result that the specialist public, which consists of operators of casinos, amusement arcades or other amusement venues, is also targeted by the goods and services at issue. Consequently, the Board of Appeal was correct in concluding that the goods and services at issue were aimed in part at the general public and in part at a professional public with specific expertise or knowledge in the gambling industry in particular.

33      In the second place, as regards the level of attention of the relevant public, it should be noted, first, that the general public includes both persons who wish to use or play, for example, the various machines and games at issue by going to a casino or another amusement venue and persons who wish to purchase those games, machines, apparatuses or software for the purposes of private entertainment or as collectors.

34      Secondly, in so far as the goods and services at issue include general categories of goods and services (see paragraph 32 above), which may vary according to price, degree of sophistication, how specialised in nature they are or their general terms of use, the Board of Appeal was entitled, without making an error of assessment, to take the view that the level of attention of the relevant public could vary from average to high, according to the goods and services concerned.

35      Thirdly, it should be noted that, contrary to what the applicant claims, gambling involves the consumer staking sums of money with a risk of financial loss. That risk of financial loss depends not only on the amount of each stake, but also on their frequency. Since some players who stake small sums of money are likely to do so regularly, it should be noted that they are exposed to a significant risk of financial loss. In those circumstances, such a risk justifies the consumer displaying at least an average rather than a low level of attention when choosing a product or service related to gambling, regardless of the amount staked.

36      It follows that the applicant’s argument based on the erroneous definition of the relevant public and its level of attention must be rejected.

 The comparison of the signs

37      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).

38      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. 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. 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 (see judgments of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraphs 41 and 42 and the case-law cited, and of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).

39      In the present case, before addressing the question of the visual, phonetic and conceptual similarity of the signs at issue, it is necessary to examine the assessment of the distinctive and dominant elements of those signs carried out by the Board of Appeal.

–       The distinctive and dominant elements of the marks at issue

40      As a preliminary point, it should be borne in mind that, with regard to the assessment of the dominant character of one or more given components of a composite trade mark, account must be taken, in particular, of the intrinsic qualities of each of those components by comparing them with those of other components (judgment of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 35).

41      For the purpose of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods and services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods and 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 and services for which the mark has been registered (see 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 47 and the case-law cited).

42      In the present case, as regards the word element ‘stars’, common to the marks at issue, the Board of Appeal concluded, in paragraphs 44 to 46 of the contested decision, contrary to the Cancellation Division, that that element had weak inherent distinctiveness, as it is part of basic English vocabulary and is generally perceived by a large part of the relevant public, including the non-English-speaking public, as a laudatory term referring to the superior quality of the goods and services at issue.

43      As regards the differing word elements of the marks at issue, the Board of Appeal found, in paragraph 38 of the contested decision, that the word element ‘power’ of the earlier mark was part of basic English vocabulary and meant, inter alia, ‘relating to or utilising strength’. It also considered that that element was commonly used in commerce to refer to ‘energy’. Therefore, that word element will be easily understood by the relevant public as alluding to the strength of the software covered by the earlier mark, with the result that it has weak inherent distinctiveness. As regards the word element ‘extra’ of the contested mark, the Board of Appeal upheld the Cancellation Division’s decision in so far as it had found that that element meant ‘beyond or more than the usual, stipulated or specified amount or number; additional’ and was, consequently, devoid of any distinctive character since it had a promotional or laudatory meaning for the goods and services at issue.

44      According to the Board of Appeal, since those word elements are placed at the beginnings of the marks at issue, they will attract the consumer’s attention. The word element ‘extra’ of the contested mark, although devoid of any distinctive character, will not be disregarded by the relevant public since it has the same size and colour as the word element ‘stars’. The Board of Appeal also found, in essence, in paragraph 53 of the contested decision, that the signs at issue also differed in their colours and typefaces, which will not be disregarded either.

45      The applicant does not dispute the Board of Appeal’s assessments as to the inherent distinctiveness of the word elements of the marks at issue. By contrast, it disputes the importance given by the Board of Appeal to the beginnings of the signs, their colours, their typefaces and their figurative elements. According to the applicant, the colours, typefaces and figurative elements of the signs at issue are entirely irrelevant since, first, the typefaces of the signs do not go beyond what is common in advertising in general and, secondly, the figurative elements of the earlier mark, which are representations of stars, merely support the meaning of the word element ‘stars’.

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

47      As regards, in the first place, the inherent distinctiveness of the word elements making up the marks at issue, it should be noted that the Board of Appeal’s findings in that regard are not disputed by the applicant. In view of the meanings of those word elements as accepted by the Board of Appeal (see paragraphs 42 and 43 above), it is necessary to confirm the Board of Appeal’s findings that, first, the word elements ‘stars’ and ‘power’ had weak inherent distinctiveness and, secondly, the element ‘extra’ was devoid of any distinctive character.

48      As regards, in the second place, the dominant elements of the signs at issue, the Board of Appeal found, in essence, that those signs were not dominated by any of their elements and that they each had to be compared as a whole. That assessment is free from error.

49      First, as regards the importance given by the Board of Appeal to the differing word elements of the marks at issue, it should be noted that, although the word element ‘extra’ of the contested mark is descriptive of the goods and services at issue, the fact remains that, according to the case-law, the weak distinctive character of one element of a mark does not necessarily mean that that element will not be taken into consideration by the relevant public. Despite its weak distinctive character, a descriptive element of a trade mark is likely to attract the attention of the relevant public because of its length and its position at the beginning of that mark (see, to that effect, judgment of 22 November 2018, Endoceutics v EUIPO – Merck (FEMIVIA), T‑59/18, not published, EU:T:2018:821, paragraph 33 and the case-law cited).

50      Furthermore, it should be noted that the word elements ‘extra’ and ‘power’ occupy the initial parts of the marks at issue and have the same size, length, horizontal alignment, colour and typeface as the word element ‘stars’ of their respective marks. Therefore, having regard (i) to the fact that the element ‘stars’ occupies the second position in the marks at issue and (ii) to the little relative differences as regards the distinctive character of those three word elements, as EUIPO observes, it cannot be held that the common element ‘stars’ is more visible than the elements ‘power’ and ‘extra’.

51      In those circumstances, the Board of Appeal was correct in finding that the word elements ‘power’ and ‘extra’ of the signs at issue will attract the attention of the relevant public and cannot be regarded as negligible in the overall impressions created by those signs.

52      Secondly, as regards the relevance of the differences resulting from the figurative and stylistic elements in the comparison of the marks at issue, it should be noted that, in the contested mark, the word elements ‘extra’ and ‘stars’ appear in upper-case letters, in golden yellow with shades of brown, creating a metallic effect, and are accompanied by figurative elements evoking flashes of light, whereas, in the earlier mark, the word elements ‘power’ and ‘stars’ are presented in upper- and lower-case italicised letters, in black and white, and are accompanied by the representation of four stars of the same colour and different sizes. In that regard, contrary to what the applicant claims, the fact that the stylisation of the word elements of the signs at issue is decorative does not mean that the relevant public concerned will not pay any attention to it. As EUIPO points out, given the minor relative differences in distinctive character between the elements making up the marks at issue, the stylised elements of those marks will not go unnoticed.

53      Furthermore, as regards, more specifically, the figurative elements of the earlier mark, representing stars, the applicant is incorrect in claiming that they are irrelevant to the comparison of the signs, since they are as distinctive as the element ‘stars’, both referring to the same concept conveying a laudatory message as to the superior quality of the goods and services at issue. Moreover, given that their size is similar to that of the letters making up the word elements of the earlier mark, the figurative elements of that mark are clearly visible and will be memorised by the relevant public.

54      In the light of all of the foregoing, it must be concluded that, in accordance with the case-law cited in paragraph 38 above, the Board of Appeal did not make an error of assessment in taking into consideration all the elements making up the marks at issue when comparing them.

–       The visual and phonetic comparison of the marks at issue

55      The Board of Appeal found, in paragraphs 53 and 54 of the contested decision, that the marks at issue had a low degree of visual and phonetic similarity. In that regard, it pointed out that, in the light of the weak distinctive character of the common word element ‘stars’, that element has a limited impact on the overall impressions of the signs at issue, with the result that the similarity resulting from that element will be counteracted to a certain extent by the differing elements. According to the Board of Appeal, the differing word elements of those signs, ‘power’ and ‘extra’, will attract the consumer’s attention, both visually and phonetically, given that they are placed at the beginnings of the signs. Visually, in addition to the differences in the beginnings of the signs, they differ in their typefaces and colours.

56      Although the applicant does not dispute the low degree of visual and phonetic similarity found by the Board of Appeal, it submits, in essence, that the Board of Appeal erred in its assessment of the similarity of the marks at issue and of the overall impressions created by those marks. It submits, in essence, first, that the impressions created by the marks at issue are similar since one of the two elements making up the earlier mark, ‘stars’, is reproduced in its entirety in the contested mark. Secondly, it complains that the Board of Appeal attached too much importance to the minor differences resulting from the beginnings of the signs, their typefaces, their colours and their figurative elements.

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

58      It is apparent from the case-law that the weakly distinctive character of an element which is common to two signs reduces the relative weight of such an element in the comparison of those signs, including the visual and phonetic comparisons, even though its presence must be taken into account (see judgment of 13 September 2023, Korres v EUIPO – Naos (EST. KORRES 1996 HYDRA-BIOME), T‑328/22, not published, EU:T:2023:533, paragraph 75 and the case-law cited).

59      In the present case, as regards the visual comparison of the signs at issue, first of all, although it cannot be denied that the common word element ‘stars’, which appears in the second position of both signs, introduces elements of visual similarity, it is nevertheless necessary to uphold the Board of Appeal’s assessment that the resulting similarity has a limited impact on the overall visual impressions of the signs on account of the weak distinctive character of that element.

60      Next, it should be noted, as the Board of Appeal correctly found, that the marks at issue differ, on the one hand, in the word elements ‘extra’, as regards the contested mark, and ‘power’, as regards the earlier mark, which are completely different visually and cannot be regarded as having a negligible visual impact, given their position and size (see paragraphs 48 to 51 above).

61      On the other hand, the marks at issue differ in the different graphic features and colours in which their word elements are depicted. Contrary to what the applicant claims, and as noted in paragraphs 52 and 53 above, although they play a secondary role, the figurative and stylistic elements of the marks at issue will not be overlooked by the relevant public, given that they contribute to the overall visual impressions created by those marks.

62      In those circumstances, it must be concluded that the similarity resulting from the common element ‘stars’ is offset by the differing elements of the marks at issue, which means that, taken as a whole, the marks at issue are visually similar only to a low degree.

63      Similar considerations apply to the phonetic comparison of the marks at issue. It should be noted, first, that the marks at issue coincide in the identical pronunciation of their second word element, ‘stars’, the impact of which is limited because of its weak distinctive character (see paragraph 58 above). Secondly, the pronunciation of those marks differs in their initial parts, namely the word element ‘extra’, as regards the contested mark, and the word element ‘power’, as regards the earlier mark. That being said, taken as a whole, the marks at issue have a low degree of phonetic similarity.

64      In the light of all the foregoing considerations, it must be held that the Board of Appeal’s analysis concerning the low degree of visual and phonetic similarity of the marks at issue must be regarded as free from error.

–       The conceptual comparison

65      The Board of Appeal found, in paragraphs 49 to 52 of the contested decision, that the marks at issue were conceptually similar to a low degree in so far as, first, the marks shared the word element ‘stars’, which had a limited impact on the conceptual similarity in view of its weak distinctive character. Secondly, it found that the marks at issue differed in the concepts conveyed by the additional word elements ‘power’ and ‘extra’.

66      The applicant submits that there is a strong conceptual similarity between the marks at issue. In that regard, it submits that the word element ‘power’ of the earlier mark has – in addition to the meanings accepted by the Board of Appeal, namely ‘relating to or utilising strength’ or ‘energy’ – the same meaning as or meanings similar to the word element ‘extra’ of the contested mark, namely ‘beyond or more than the usual, stipulated or specified amount or number; additional’. That is the case where the element ‘power’ serves to describe an action ‘done with power’ or something or someone that is ‘powered up’. Consequently, according to the applicant, the marks at issue have virtually identical meanings since they identify the goods at issue as being something – in the present case stars – that ‘go[es] beyond or more than usual’.

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

68      In the first place, it must be borne in mind that the distinctive character of an element common to the signs at issue from which their conceptual similarity arises is a criterion to be taken into account in order to establish the degree of that similarity. It has thus been held that where the signs at issue share only a weakly distinctive word, the conceptual similarity of those signs must be regarded as low (see judgment of 9 April 2025, Allsize v EUIPO – Sjóklæðagerðin (North 56-4), T‑209/24, not published, EU:T:2025:381, paragraph 55 and the case-law cited).

69      In the second place, it should be noted that the marks at issue differ in the meanings of their additional word elements. In that regard, the applicant itself acknowledges that, as the Board of Appeal stated in paragraphs 38 and 39 of the contested decision, the element ‘extra’ of the contested mark will be perceived by the relevant public as meaning ‘beyond or more than the usual, stipulated or specified amount or number; additional’, whereas the element ‘power’ of the earlier mark will be perceived as meaning ‘relating to or utilising strength’ or as referring to ‘energy’. It must be stated that the meaning likely to be perceived by the relevant public for each of those elements is completely different.

70      As regards the applicant’s argument that the elements ‘power’ and ‘extra’ have the same meaning or similar meanings, it should be noted that the applicant has not provided any evidence capable of demonstrating that the relevant public will understand the element ‘power’ as meaning ‘beyond or more than the usual, stipulated or specified amount or number; additional’, whether taken in isolation or when it precedes the word ‘stars’. Accordingly, the applicant’s conclusion that the marks at issue have virtually identical meanings in that they allude to something ‘going beyond regular stars’ must be rejected as unfounded.

71      Consequently, the Board of Appeal was correct in finding that the word element ‘power’ of the earlier mark had no equivalent concept in the contested mark. As the Board of Appeal found, having regard to the meanings of the word elements making up the contested mark, ‘extra’ and ‘stars’ (see paragraphs 42 and 43 above), the relevant public is likely to associate that mark, in the context of gambling, with the bonus star symbols on slot machines or with loyalty points in reward programmes in the context of casinos.

72      In those circumstances, the Board of Appeal’s finding that, notwithstanding the presence of the common element ‘stars’, which has a weak distinctive character, the marks at issue were conceptually similar to a low degree is not vitiated by error.

 The global assessment of the likelihood of confusion

73      The Board of Appeal found that, in accordance with the principle of interdependence, notwithstanding the identity or similarity of the goods and services at issue and the average inherent distinctiveness of the earlier mark, there was no likelihood of confusion on the part of the relevant public in the European Union, given the level of attention varying from average to high on the part of that public, the weak distinctive character of the common element ‘stars’ and the low degree of visual, phonetic and conceptual similarity of the signs at issue.

74      The applicant submits that there is a risk that the relevant public will perceive the contested mark as a supplemental mark or a variation of the earlier mark in so far as the marks at issue coincide in the element ‘stars’ and in the meanings of the elements ‘power’ and ‘extra’. According to the applicant, since the relevant public displays a low, or even very low, level of attention or a level of attention that is average at best, it will not focus on the minor differences identified by the Board of Appeal. Therefore, in view of the similarity and identity of the goods and services at issue, the similar overall impressions created by the marks at issue and notwithstanding the weak distinctive character of the common element ‘stars’, the Board of Appeal should have concluded that there was a likelihood of confusion.

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

76      It is important to note that, according to the case-law cited in paragraph 22 above, 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.

77      Furthermore, according to the case-law, where the earlier trade mark and the contested mark coincide in an element that is weakly distinctive with regard to the goods at issue, the global assessment of the likelihood of confusion does not often lead to a finding that such likelihood exists (see, to that effect, judgment of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 53 and the case-law cited).

78      Where the elements of similarity between two signs arise from the fact that they share a component with a weak distinctive character, the impact of such elements of similarity on the global assessment of the likelihood of confusion is itself low (see judgment of 23 July 2025, Löwen Entertainment v EUIPO – Wazdan Holding (Magic Crown), T‑436/24, not published, EU:T:2025:746, paragraph 63 and the case-law cited).

79      In the present case, it follows from the considerations set out in paragraphs 58 to 72 above that the marks at issue have only a low degree of visual, phonetic and conceptual similarity. The existing similarities between the marks at issue are not particularly significant in the present case. They are limited to the presence of the word element ‘stars’, which has a weak distinctive character, and are offset by the presence of the word elements ‘power’ and ‘extra’ and by the differences resulting from the figurative and stylistic elements of those marks, which will not be disregarded by the relevant public. Although the elements ‘extra’ and ‘power’ also have a weak distinctive character, they introduce a difference between the marks at issue, taken as a whole. The circumstances of the present case are therefore such that the relevant public, faced with the marks at issue, will be able to distinguish those marks clearly and will not be led to believe that the mere presence of the weakly distinctive word element ‘stars’ in the contested mark is indicative of the same commercial origin as the earlier mark.

80      The Board of Appeal was therefore correct in finding that the marks at issue, taken as a whole, were sufficiently different to prevent the similarities arising from the common word element ‘stars’ from leading to the risk that the relevant public might believe that the goods and services at issue come from the same undertaking or from economically linked undertakings.

81      That conclusion cannot be called into question by the applicant’s arguments.

82      First, the applicant’s argument that the Board of Appeal incorrectly ruled out the existence of a likelihood of confusion on the basis of an incorrect level of attention must be rejected. As has been found in paragraphs 32 to 36 above, the Board of Appeal correctly identified the level of attention of the relevant public, which varied from average to high depending on the goods and services concerned.

83      Secondly, contrary to what the applicant claims, the Board of Appeal did not make an error of assessment in taking into account all the elements making up the marks at issue in order to conclude that, in view of the differences resulting from the initial parts of the marks at issue, accentuated by the differences in their figurative and stylistic elements, those marks produced different overall impressions.

84      Thirdly, it should be noted that, in order to conclude that there is a risk that the relevant public will perceive the contested mark as a variation of the earlier mark, the applicant relies on the premiss that the marks at issue produce highly similar overall impressions from a conceptual point of view, which is incorrect, as is apparent from the considerations set out in paragraphs 68 to 72 above.

85      Fourthly, the argument based on the analogy with the judgment of 28 January 2015, BSH v OHIM – Arçelik (AquaPerfect) (T‑123/14, not published, EU:T:2015:52), must be rejected, since the circumstances of that case differ from the present dispute.

86      First of all, that case did not concern the likelihood of confusion between two composite figurative marks, but between two word marks, namely AquaPerfect and waterPerfect. Although a word mark normally covers any type of representation, a figurative mark, by definition, includes a specific representation, which, unless it is totally negligible, must, even if it is dominated by a word element, nevertheless be taken into account in the global assessment of the similarity between the signs, with the result that such a figurative mark cannot, in principle, be given a scope of protection which is strictly identical to that of a word mark which consists only of its word element (see, to that effect, judgment of 22 February 2018, International Gaming Projects v EUIPO – Zitro IP (TRIPLE TURBO), T‑210/17, not published, EU:T:2018:91, paragraph 77 and the case-law cited). As has been held in paragraphs 48 to 54 above, the Board of Appeal correctly accepted that none of the elements making up the marks at issue, including their figurative and stylistic elements, could be regarded as negligible in the overall impressions of those marks.

87      Next, it should be noted that, unlike the abovementioned case, in the present case, as has been found in paragraphs 64 and 72 above, the Board of Appeal was entitled to find that the marks at issue were visually, phonetically and conceptually similar to a low degree. In that regard, it should be noted that the word elements ‘extra’ and ‘power’ of the marks at issue in the present case do not have the same elements of similarity as the word elements ‘water’ and ‘aqua’ of the marks at issue in the abovementioned case, since the words ‘extra’ and ‘power’ have neither the same nor a similar meaning.

88      Fifthly, the applicant’s argument that, in assessing the likelihood of confusion, the Board of Appeal misapplied the case-law relating to the likelihood of confusion, and in particular the principle that the scope of protection of a mark varies according to its distinctive character, from which it follows that even a mark with a weak distinctive character must be afforded protection, even if limited, cannot succeed.

89      In that regard, it should be noted, first of all, that, in the global assessment of the likelihood of confusion, the Board of Appeal found, in essence, that the earlier mark had an average and not a weak distinctive character, a finding that the applicant does not dispute.

90      Next, it should be borne in mind that, according to the case-law, the application of the principle of interdependence is not intended to be applied mechanically. Thus, whilst it is true that, by virtue of the principle of interdependence, a lesser degree of similarity between the goods or services covered may be offset by a greater degree of similarity between the marks, conversely there is nothing to prevent a finding that, in view of the circumstances of a particular case, there is no likelihood of confusion, even where identical goods are involved and there is a weak degree of similarity between the marks at issue (see, to that effect, judgments of 27 June 2019, Sandrone v EUIPO – J. García Carrión (Luciano Sandrone), T‑268/18, EU:T:2019:452, paragraphs 95 and 96 and the case-law cited, and of 13 November 2024, Interapothek v EUIPO – Q4 Media (miababy), T‑1169/23, not published, EU:T:2024:814, paragraph 46).

91      It follows that, when assessing whether there is a likelihood of confusion, all factors relevant to the circumstances of the case must be weighed up, given that they are interdependent (see judgment of 10 March 2021, Hauz 1929 v EUIPO – Houzz (HAUZ EST 1929), T‑68/20, not published, EU:T:2021:127, paragraph 62 and the case-law cited).

92      It should be noted that, in the global assessment of the likelihood of confusion, in accordance with the case-law cited in paragraphs 76 to 78, 90 and 91 above, the Board of Appeal took into account all factors relevant to the circumstances of the case and correctly found that, notwithstanding the average distinctive character of the earlier mark and the similarity and identity of the goods and services at issue, the low degree of similarity between the signs at issue resulting solely from the weakly distinctive word element ‘stars’ was not sufficient to conclude that there was a likelihood of confusion on the part of the relevant public, displaying an average to high level of attention.

93      In the light of all the foregoing considerations, the single plea in law relied on by the applicant in support of its action must be rejected as unfounded and, accordingly, the action must be dismissed in its entirety.

 Costs

94      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.

95      In the present case, since the applicant has been unsuccessful, it must be ordered to pay the intervener’s costs, in accordance with the form of order sought by the intervener. By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, in the absence of a hearing, be ordered to bear its own costs.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Novomatic AG to bear, in addition to its own costs, those incurred by Euro Games Technology OOD;

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

Sampol Pucurull

Laitenberger

Stancu

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.