Risk of confusion in trademark law: EU Court confirms rejection of the mark "ProbioDefend" due to similarity to "Defendyl"

The Court of Justice of the European Union (EuG) has decided by judgment of 11 February 2026 that the Union mark "ProbioDefend" cannot be registered because there is a risk of confusion with the earlier mark "Defendyl". The decision illustrates how strongly individual distinctive word elements can shape trademark law assessment, even when additional descriptive or graphic elements are present.

Background to the proceedings and the marks at issue

The proceedings were based on a trademark law dispute between two companies in the health and dietary supplement sector. One company applied to the European Union Intellectual Property Office (EUIPO) for registration of the Union figurative mark "ProbioDefend" for various products in Class 5, including probiotic dietary supplements, vitamin preparations and other health-related products. Another company filed an opposition to this application, relying on its earlier Union word mark "Defendyl", which is also protected for dietary supplements and pharmaceutical products.

The EUIPO granted the opposition and rejected the registration of the mark "ProbioDefend". The applicant for the mark appealed against this decision, but the appeal was also dismissed. Finally, the company turned to the Court of Justice of the European Union to have the decision reviewed.

Standard for risk of confusion under Union trademark law

Pursuant to Art. 8 Abs. 1 lit. b of the Union Trade Mark Regulation, a mark shall not be registered if, because of its identity with or similarity to an earlier mark and the identity or similarity of the goods or services protected by those marks, there exists a likelihood of confusion. In this regard, the likelihood of confusion includes the possibility that consumers will mentally associate the marks with each other or suspect an economic connection between the undertakings.

The assessment is based on an overall, composite examination of all relevant factors. In particular, the following factors are taken into account:

• Degree of similarity of the marks - Term removed: Opposition to mark application EuG T-209/25 Risk of confusion Opposition to mark application EuG T-209/25
• Degree of similarity of the goods or services
• Distinctive character of the earlier mark

The mere existence of a likelihood of confusion for a significant portion of European consumers is sufficient to prevent registration.

Identity of goods intensifies conflict potential

The Court first confirmed that the goods covered by both marks are identical or at least highly similar. Both marks relate to dietary supplements and health-related products that are frequently offered through the same distribution channels and are directed at comparable consumers. This identity of goods increases the risk that consumers will establish a connection between the marks.

The relevant public comprised both medical professionals and end consumers, who exhibit a relatively high degree of attentiveness due to the health-related effects of the products. Nevertheless, even an elevated degree of attentiveness does not exclude a likelihood of confusion.

Decisive role of the common component "defend"

A central point of the decision was the analysis of the elements of the marks. The applied-for mark "ProbioDefend" contains the elements "probio" and "defend", whereas the earlier mark "Defendyl" also contains the element "defend".

The Court found that the element "probio" is merely descriptive in character, as it is derived from the term "probiotic" and thus refers to the nature or effect of the goods. Descriptive elements regularly have lower distinctive character in trademark law and shape the overall impression of a mark less strongly.

Graphic elements of the applied-for mark, such as a stylized image of a digestive system with protective symbolism, were also assessed as descriptive, as they merely refer to the health-related effects of the products.

By contrast, the element "defend" was granted normal distinctive character, in particular for parts of the relevant public that do not immediately understand the English word or do not perceive it as purely descriptive. It was decisive that this element is contained in both the applied-for and the earlier mark and represents the essential distinctive element.

Average degree of similarity is sufficient for likelihood of confusion

The Court found that there is at least average visual and phonetic similarity between the marks, as they contain the identical and distinctive element "defend". The differences created by additional elements such as "probio" or the ending "yl" are not sufficient to neutralise the similarity.

Particularly relevant was the consideration that consumers could perceive the element "defend" as a central identification factor. Therefore, it is conceivable that they might view "ProbioDefend" as a product line or variant of the mark "Defendyl".

Even if the marks have conceptual differences, this is insufficient to fully offset the existing visual and phonetic similarity.

Result: Registration of the mark rightly rejected

The Court confirmed the decision of the EUIPO and found that there is a likelihood of confusion within the meaning of Union trademark law. The action was therefore wholly dismissed, and the application for the mark "ProbioDefend" remains rejected.

The judgment illustrates that the adoption of a central distinctive element of an earlier mark can be sufficient to prevent a mark application, even when additional descriptive or graphic elements are present.

Conclusion for businesses and mark applicants

The decision impressively demonstrates how important careful trademark strategy is. Before filing a mark application, companies should thoroughly verify whether key elements of their planned mark could conflict with existing marks. Even seemingly descriptive or commonly used terms can be relevant to trademark law if they are perceived as a distinctive element.

Practical tips:

• Conduct a comprehensive trademark search before every mark application.
• Avoid adopting key elements of existing marks.
• Do not rely on graphic or descriptive additions to exclude a likelihood of confusion.
• Bear in mind that a likelihood of confusion for even part of the EU public is sufficient.
• Develop marks that are as original and distinctive as possible.

Our firm AVANTCORE has extensive expertise in trademark and sign law and assists companies in the development, filing and protection of strong marks as well as in the defence against and enforcement of trademark rights.