In Judgment T-378/09, the General Court confirmed the decision of the First Board of Appeal which rejected the opposition brought by Spar Handelsgesellschaft mbH against the applied for Community trademark SPA GROUP on the basis of earlier German rights, such as the following (and the other same mark in black and white)

As regards the comparison between the signs, they present visual, aural and conceptual differences. SPA will be associated to the well-being water treatment and GROUP is basic business English which will be understood by the German public. SPAR means ‘to save’(money). Even though the opponent presented examples of common neologisms made of English and German words like ‘gedowanloadet’, ‘upgegraded’ and ‘Justizdepartment’, it is not conclusive proof to the contrary that most of the public, upon seeing SPA GROUP will pronounce ‘spa’ as the English pronunciation and not like ‘SPAR’ in the German pronunciation (with a whistling ‘s’ as in ‘chpar’).

Likelihood of confusion can thus be excluded given the differences between the signs, the weak distinctive character of the earlier rights for some of the goods in Class 16 and services because of its meaning ‘to save’ related to the saving characteristics and taking into account the higher degree of attention for the relevant professional consumer for services in Class 35.

The evidence presented by the opponent regarding the reputation was rejected by the Board according to its discretionary power because the Survey study had been conducted in 2005, before the date of opposition and there was no valid reason for not having submitted it earlier in the procedure. Further, it only showed reputation in relation with foodstuff which did not belong to the opposed goods and services.

There is no evidence of indirect risk of confusion because no proof was provided of serious use of a family of trademarks such as EUROSPAR and SPAR express and the contested CTM is not similar enough as to be perceived like a declined mark. Finally, the claim regarding the risk of confusion with the company name Spar Handelsgesellschaft mbH was rejected because it was not a ground of opposition raised before the Office.

The average consumer might not know it but trademark lawyers have to review their beer classics outside of the pub (should it become a prerequisite for the TM bar exam?) since they are increasingly facing EU trademarks battles more or less confusing . As it turns out, Bavaria beer is actually Dutch while Budweiser is not just the most famous American lager, it has been the "The Beer of Kings” and brewed in České Budějovice, Czech Republic since the 13^th century.

The General Court in Case T-205/10 had yet to deal with a battle of Hispanic trademarks beer between Cerveceria Modelo (Mexico) and Plataforma Continental (Spain). The judges rejected the appeal upholding the finding by OHIM of likelihood of confusion between the following marks for identical goods in Class 32:

          LA VICTORIA DE MÉXICO

Earlier CTM                         Contested CTM

The relevant public is the average EU consumer. As the Office pointed out, even if in the sector of alcoholic drinks, the consumer is used to trademarks with various figurative and denominative elements, he will not pay more attention to the various elements (in particular after more than one pint..).

On the overall impression of the trademarks, the Office rightly found that VICTORIA is the dominant element in the earlier mark and that the other words ‘cerveza’, ‘pilsener’, ‘Málaga’ or ‘1928’ are of secondary importance size-wise and also because of their descriptive character of the product, place of geographic origin and year of marketing. Thus, from a visual and aural point of view, the signs are similar in coinciding in their dominant element.

From a conceptual point of view, the consumer who speaks English or Romance languages (i.e.: the French, Italian, Portuguese, Romanian and Spanish) will probably understand ‘victoria’ as referring to ‘victory’; however for the rest of the EU consumers, it might be perceived as a woman’s name . The conceptual meaning of ‘the biggest victory of Mexico’ of independence over the Spanish Kingdom was not demonstrated. For most EU consumers, Mexico clearly indicates the place of origin because it corresponds or is similar to the country’s name (¡no chingues! As the locals would say) and will be understood as a qualifier of the victory or the woman’s name. Overall, the dominant element being clearly VICTORIA , the marks will be seen as conceptually similar.

For a famous Mexico Victory click aquí and for musical La Victoria de Mexico click allá.

In Judgment T-593/10, the General Court had to examine if there was a likelihood of confusion between the two following marks for identical goods in Class 25:

   v    

Contested CTM                                  Earlier CTM

The GC rejected the appeal and agreed with the OHIM that the signs were visually different so as to exclude any risk of confusion for the average EU consumer. In the earlier mark, there is clearly the letter B and the drawing of a boomerang (since the curved part of is wider than the two straight branches) represented below whereas in applied for mark, the figurative element above could be conceived as a ‘B’ or as the number ‘8’ and it not very probable that the drawing under be perceived as a boomerang. The colours vary greatly as well as the orientation of the ‘boomerang’- like figurative element.

For the consumer who reads the letter B in the contested CTM, the marks will bear some aural and conceptual similarity but for those who read a 8, the marks will be different.

The court rejected the argument brought by the Opponent El Corte Ingles that because the CTM application was denominated as ‘B’ before OHIM, the consumer would perceive it as such. The GC, invoking the well-know case law that for Class 25 goods such as ‘clothing’ the visual aspect bears more importance concluded that the consumer will not confuse the marks in conflict.