Another decision of OHIM Board of Appeal (in the case R-0761/2010-1) about the circumstances in which the relevant public chooses to purchase a product or a service and the impact on the judgment of the likelihood of confusion.

On March 2005, Tate & Lyle Plc filed an application to register the word trademark CORE as a Community Trademark for services in class 42 including scientific research; research relating to foodstuff and food products; professional advisory services relating to food technology; computerized food analysis services; quality control relating to hygiene of food and food stuffs.

Cooperativas Ourensanas S. Coop Galega filed a notice of opposition on the basis of some figurative trademarks, among others, the earlier figurative CTM:

registered for class 5, 29, 30, 31, 39 and 42 for the services: providing of food and drink; providing of temporary accommodation; medical, hygienic and beauty care; veterinary and agricultural services; legal services; industrial and scientific research; computer programming.

The Opposition Division had upheld the opposition in relation to some of the services in class 42 which had to be judged identical or similar.

The words COREN and COREN were presented in a standard typeface and the usage of the upper and lower case in the earlier trademark had to be considered irrelevant.

The Opposition Division had found that the pronunciation, the rhythm and the intonation of the signs were similar in the majority of European languages and that the degree of distinctiveness of the earlier trademark was “normal”; therefore it had stated that a likelihood of confusion did exist.

In its decision dated 15 December 2010, the Court of Appeal judged on the contrary that the mixing of upper and lower cases makes a significant contribution to the earlier trademark’s visual impression.

Moreover, the phonetic similarity between the signs should not be overstated: the interested services are highly specialized and directed at professionals in the food industry. Since the services are not ordered aurally, but only after a careful study of offers, brochures and catalogues, estimates of costs etc, the relevant (specialized) consumers will normally have the chance to perceive the marks visually and simultaneously before choosing and buying the service.

The importance of phonetic similarities is therefore reduced, while the differences in the appearance of the signs become more important.

On the basis of an overall assessment, the Board of Appeal decided that there was no likelihood of confusion between the signs, even in respect to the services that the Opposition Division had found to be identical.