In Judgment T-466/08, the GC confirmed likelihood of confusion for the German public between ACNO FOCUS and earlier German mark FOCUS for identical goods in Class 3, namely ‘Cosmetic and make-up preparations’.
The CTM applicant asked proof of genuine use of the earlier national mark, but the OHIM found that the opponent was not required to furnish proof since the mark had been itself the subject of opposition proceedings in Germany which were concluded on the year of the CTM opposition’s filing in 2004. The GC confirmed that in the absence of a relevant provision in the CTMR, reference must be made to the national law of the Member state: it results from Paragraph 26 (5) of the Markengesetz, as interpreted by the German courts, that it doesn’t matter if only part of the goods and services have been opposed, it constitutes a ‘single commercial concept’ and the Board of appeal had correctly taken into account the date on which the opposition proceedings were concluded in Germany.
Regarding the similarity of the trademarks, the element ‘acno’ being very close to the German word ‘akne’, alluded to the characteristics of the goods, namely the treatment of acne problems, and the German purchaser of cosmetics could believe that the sign ACNO FOCUS is the name under which the opponent has begun to market a new line of products for the treatment of acne.
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