"24. ...  the appellant considers that the judgment under appeal examined the marks at issue not on the basis of the criterion of a ‘global assessment’ or ‘overall impression’, but took a separate, successive and analytical approach to the constituent elements of the compound marks, thereby infringing Article 8(1)(b) and the case-law interpreting it. Thus, in giving the figurative elements a decisive weight and denying any importance to the word elements of the mark, the Court of First Instance distorted the facts and evidence in the file.

25. ..., according to the appellant and OHIM the Court of First Instance did not correctly assess the relevant public in that it established the profile of the average Spanish consumer of olive oil as a consumer who is closer to the model of the average consumer used under German case-law, namely ‘a careless and rash consumer’, rather than the model European consumer defined by Community case-law who is ‘reasonably well informed and reasonably observant and circumspect’. In addition, the judgment under appeal assumes a lower level of attention by consumers with regard to marks of olive oil, instead of assuming the level of attention normally paid to olive oil by the average Spanish consumer who is reasonably well informed and reasonably observant and circumspect. ...

50. While the Court of First Instance would appear at first glance to have carried out a global assessment of the risk of confusion between the marks at issue, I consider that the Court of First Instance only effectively took into account in that assessment the brand name ‘La Española’. However, apart from recognising ... that the word element is different, the judgment under appeal contains no express assessment of the distinctiveness or otherwise of the brand name ‘Carbonell’. I therefore consider that the Court of First Instance failed adequately to compare the actual content of the word elements of the brand names ‘Carbonell’ and ‘La Española’.

51. It follows ... that in assessing the word elements of the marks at issue, the Court of First Instance bypassed in that assessment the actual content of the word element of the brand name ‘Carbonell’ and carried out a one-sided and therefore legally incorrect comparison of the two brand names at issue. I consider that this omission led to a distortion of the facts and evidence in the file.

52. At the same time, the above omission on the part of the Court of First Instance led, in my view, to an error of law as regards the interpretation and application of Article 8(1)(b) of Regulation No 40/94.

53. I would add in that regard that even if the Court of First Instance considered the contents of the word elements of the brand names ‘Carbonell’ and ‘La Española’ to be non-dominant and/or of lower importance, it was nonetheless obliged, unless it took the view that those elements were negligible, to compare the actual content of the word elements of the brand names.  On that point, in Medion,  for instance, the Court found that a likelihood of confusion arose from a non-dominant component.

54. Moreover, the Court of First Instance did not provide any express reason as to why, in the context of the visual comparison of the marks at issue, it did not compare the actual content of the word elements of the brand names directly (that is to say, the brand names of the respective marks ‘Carbonell’ and ‘La Española’).

55. In addition, I also agree with the appellant and OHIM that – in spite of having cited ... the correct case-law concerning the standard of ‘a reasonably well-informed and reasonably observant and circumspect’ average consumer to be applied in the context of a global appreciation – the Court of First Instance in fact applied a standard which more closely resembles one of an excessively negligent consumer"