General Court, July 15, 2026 – T-667/25: Likelihood of Confusion in Cases of Identity in Non-Distinctive Elements

The judgment of the General Court of the European Union of 15 July 2026 in Case T‑667/25 (Novomatic/EUIPO – Euro Games Technology, „ULTIMATE HOT“) marks a significant clarification in European Union trademark law. The Tribunal dismissed Novomatic AG’s appeal and thereby confirmed the decision of the EUIPO’s First Board of Appeal from 2025. For the entire gaming industry and all companies relying on recurring word elements in their branding strategy, the judgment contains important lessons regarding market recognition, likelihood of confusion assessments, and the evaluation of inherent distinctiveness.

Facts and Subject Matter

The subject matter of the proceedings is the European Union trade mark „ULTIMATE HOT“, registered by Sofia-based Euro Games Technology Ltd (EGT, now Amusnet Interactive) for goods and services in Classes 9 and 41 of the Nice Classification. The mark covers electronic gaming machines, computer game software, casino and gambling services, as well as entertainment services in the field of electronic games. EGT ranks among the leading manufacturers of gaming machines in Europe and competes directly with the Austrian gaming conglomerate Novomatic AG, which itself holds an extensive portfolio of „Hot“-branded marks — including „ULTRA HOT“, „SIZZLING HOT“, and „BURNING HOT“.

Novomatic had requested the invalidity of EGT’s „ULTIMATE HOT“ mark before the EUIPO on the basis of its earlier trademark rights. The applicant’s arguments relied on § 42(1) no. 2 of the German Trade Mark Act (Art. 8(1)(b) of Regulation (EU) 2017/1001) — namely, the likelihood of confusion, including the risk of association. Novomatic argued that the conceptual and phonetic similarity between „ULTRA HOT“ on the one hand and „ULTIMATE HOT“ on the other hand would lead to an erroneous mental connection in the minds of the relevant public. The applicant further relied on the reputation and enhanced distinctiveness of its „Hot“-series.

EGT defended itself by pointing out that „ULTIMATE“ and „ULTRA“ convey semantically different meanings and that the overall impression of the marks differs. In addition, the defence highlighted the widespread use of the „HOT“ element across the gaming sector, which is characterised by numerous registrations by third parties. This dense prior registration landscape leads to a significantly reduced market value of individual „Hot“-brands and, consequently, a narrower scope of protection.

Procedural History Before EUIPO and the Court

The invalidity action brought by Novomatic was initially dismissed by the Second Board of Appeal of the EUIPO in Case R 2454/2024‑1 by decision of 28 July 2025. The Board of Appeal acknowledged that a degree of conceptual similarity between „ULTIMATE HOT“ and the earlier „HOT“-marks could not be excluded entirely, but considered the overall assessment and the specific context of differentiation sufficient to rule out any likelihood of confusion. In particular, the term „ULTIMATE“ would be perceived by the relevant public as an independent cognitive anchor that predominates the overall impression of the sign.

Novomatic appealed to the General Court of the European Union. By judgment of 15 July 2026 (T‑667/25), the Fifth Chamber dismissed the action. The Court essentially confirmed the Board of Appeal’s assessment and underlined two key legal principles: the significance of the global assessment in likelihood-of-confusion evaluations, and the importance of considering the specific characteristics of the gaming sector, in which terms such as „HOT“, „ULTRA“, „ULTIMATE“, and various other superlatives appear in countless trade marks.

Legal Assessment

Similarity of the Marks

Central to the Court’s decision is the three-stage assessment of likelihood of confusion under the established case-law of the Court of Justice. First, the similarity of the conflicting marks must be examined with regard to their visual, phonetic, and conceptual components. This assessment must be global, based on the overall impression made on the average consumer, who is deemed to be reasonably well-informed and reasonably observant and circumspect. A degree of similarity in individual components does not automatically lead to a finding of overall similarity.

The Court found that „ULTIMATE“ and „ULTRA“, while both being superlatives and thus semantically related, are conceptually distinct. „ULTIMATE“ conveys the idea of a „highest“ or „extreme“ level, whereas „ULTRA“ suggests an even more far-reaching intensity. This conceptual distinction would be perceived by the average consumer. The marks are therefore only partially similar on the conceptual level. Phonetically, the shared element „HOT“ creates commonalities, but the preceding syllables differ substantially: /ul.ti.ma.te/ versus /ul.tra/. Visually, the differing number of letters and the overall graphical appearance of the prefixes also distinguish the marks.

Market Recognition and Limited Distinctiveness

A prominent aspect of the judgment is the significant role the Court attributed to the principle of limited distinctiveness in the face of dense prior registration. The Court noted that the gaming industry is characterised by a dense network of marks containing the element „HOT“ or comparable heat- and intensity-related superlatives. A large number of existing registrations — both by Novomatic itself and by competitors such as EGT, Play’n GO, and other operators — leads to a narrowing of the scope of protection for individual „Hot“-brands, both internally and externally. This so-called „Hot“-diversity means that consumers exercising their attention will focus particularly on the preceding elements when encountering new „Hot“-marks.

This argument is of strategic importance for trademark practitioners: Companies pursuing a „word-element“-strategy in a category already densely occupied must expect courts to reduce the scope of protection accordingly. Novomatic, which itself holds approximately 1,260 EU trade marks in Class 41, could not successfully invoke this argument because its own portfolio diversity had to be treated as evidence of a general industry trend rather than as a unique feature.

The Global Assessment as the Governing Standard

The Court reaffirmed the inescapable relevance of the global assessment. Similarity in individual components of a mark is insufficient to establish a likelihood of confusion. What is decisive is whether, from the overall impression — particularly given the purchase decisions typical of the gaming sector — the average consumer gets the impression that the goods or services originate from economically linked undertakings. The average level of attention in the gaming sector is moderate, as the products in question are aimed at adults and are typically acquired with a certain degree of forethought rather than impulsively.

The combination of phonetic, conceptual, and visual differentiation, together with the limited protection scope of the „Hot“-series and the moderate level of consumer attention, led the Court to dismiss the likelihood of confusion in its entirety. Novomatic’s appeal was thus unfounded on the merits.

Context of Related Proceedings

Case T‑667/25 is only one of several parallel proceedings initiated by Novomatic against EGT and the EUIPO. In June 2026, the Court delivered its judgment in T‑668/25 concerning „20 SUPER HOT“, followed by T‑669/25 („100 SUPER HOT“), T‑665/25 („EXTREMELY HOT“), and T‑786/25 („EXTRA STARS“). In all of these cases, the Court followed the same line of reasoning and dismissed Novomatic’s invalidity actions. The consistency of this case-law reinforces the precedential value of the judgments and signals to the professional community that the assessment of the „Hot“- and „Super-Hot“-families in the gaming sector will be handled uniformly.

The background to this broad series of cases is the long-standing dispute between Novomatic and EGT, which began as early as 2016 with an injunction action before the Berlin District Court. Novomatic had alleged that EGT systematically and unfairly used the „essential elements“ of its games. The Berlin District Court dismissed the claim in May 2017, the Berlin Court of Appeal upheld the decision in December 2019, and the Federal Court of Justice rejected Novomatic’s appeal as inadmissible on 15 October 2020 (Case I ZR 25/20). All of Novomatic’s claims were dismissed at every instance. The EU proceedings T‑667/25 et al. represent a continuation of this lengthy dispute at the level of EU trade mark law.

→ The judgment confirms that dense trademark families in homogeneous sectors significantly reduce the protection scope of individual mark elements. The global assessment takes precedence over segment-based analysis.

Practical Relevance for Trademark Strategy

For companies that rely on recurring word elements or trademark clustering strategies, the judgment contains several actionable insights. First, documentation of one’s own trademark diversity is essential. A party asserting that its mark element is widely present in the market and therefore only weakly distinctive must substantiate this with concrete evidence — namely, a systematic overview of similar filing trends.

Second, early assessment of conceptual distinctiveness is advisable. The distinction between „ULTIMATE“ and „ULTRA“ was decisive. Companies developing their trademark strategy should ensure that preceding elements differ conceptually — not only visually or phonetically, but also in their semantic meaning.

Third, risk assessment at the time of filing new marks must consider the full context of the sector. A mere semantic relationship between two superlatives is insufficient to establish a likelihood of confusion. This is particularly relevant for sectors with high trademark density, such as gaming, sports, and technology.

Conclusion

The judgment of the General Court of the European Union of 15 July 2026 (T‑667/25) is a significant confirmation of the importance of the global assessment in EU trademark law. It demonstrates that the mere conceptual proximity of superlatives such as „ULTRA“ and „ULTIMATE“ in a sector with high trademark density — the gaming industry — does not give rise to a likelihood of confusion. For trademark attorneys, brand managers, and IP strategy professionals, the judgment has several clear implications: The strategic management of trademark families must always keep in view the risk of narrowing individual mark protection, and the conceptual distinctiveness of mark elements should already receive consideration during the initial conception phase.