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WEDNESDAY, 1 FEBRUARY 2012
General Court: Spar v Spa Group
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.
Posted by: Laetitia Lagarde @ 12.53
General court, likelihood of confusion, spar, spa group,
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