TUESDAY, 7 FEBRUARY 2012
General Court: An Elephant Can Be Extremely Deceptive
In case T-424/10, the contested mark is the following figurative sign registered for goods in Classes 24 and 25:
The applicant filed for a declaration of invalidity based on earlier German and Czech marks registered in Classes 24 and 25:
The Cancellation Division and the 4th Board of Appeal dismissed the application on the grounds that the applicant had not claimed that the earlier marks had a distinctive character and owing to the way in which the goods covered by the contested mark were marketed, greater importance had to be attached to a visual comparison. Thus the conceptual similarity found was not sufficient to create a likelihood of confusion between the contested mark and the earlier marks given the visual and aural differences.
The General Court found the decision vitiated as regards the assessment of phonetic similarity (there could be no difference or similarity because the marks are only composed of figurative elements) and there is a conceptual identity rather because the public will refer to the signs as ‘elephants’. However, the impact of these errors did not influence the operative part of the lack of confusion.
Nevertheless, the Court annulled the contested decision because it failed to take into consideration the enhanced distinctiveness of the earlier marks which was clearly submitted by the Applicant when referring to all the evidence put forward to prove genuine use of the marks.
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