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Portuguese consumer and Forever/4ever in General Court:
In Case T-528/11, the General Court dismissed the appeal in the following opposition case:
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Aloe Vera of America, Inc. (USA) |
Detimos – Gestão Imobiliária, SA (Portugal) |
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Contested CTM |
Earlier Portuguese mark |
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Class 32 : Aloe vera juice, aloe vera gel drinks and aloe vera pulp; aloe vera juice mixed with fruit juice(s); and bottled spring water |
Juices, lime lemon juices – exclusively for exportation’ in Class 32 |
The Opposition Division and Board of Appeal found that the relevant public consisted of average Portuguese consumers. Second, the earlier mark has been put to genuine use in Portugal in the course of the relevant period of five years: out of 27 invoices, 12 related to the relevant period and showed that the earlier mark was put to useduring 26 months. The Board noted that although these invoices were samples, the opponent submitted a quantity of examples which makes it possible to discount any possibility of merely token use of that mark.
Third, the goods concerned are in part identical and in part similar.
Fourth, there is a low degree of visual similarity between the marks at issue :the figurative element, namely the relatively banal representation of a bird of prey, is not as original and striking as the applicant suggests. Further, in the case of a mark consisting of both word and figurative elements, the word elements must generally be regarded as more distinctive than the figurative elements.
The marks are phonetically identical for part of the relevant public which had a certain knowledge of the English language and similar to an average degree for the remainder of the relevant public. The applicant is incorrect to claim that ‘English is not generally spoken and understood by the Portuguese customers’. A knowledge of that language, admittedly to varying degrees, is relatively widespread in Portugal. Although it cannot be claimed that the majority of the Portuguese public speaks English fluently, it may, however, reasonably be presumed that a significant part of that public has at the very least a basic knowledge of that language which enables it to understand and to pronounce English words as basic and everyday as ‘forever’ or to pronounce numbers below 10 in English. Furthermore, due to the very widespread use of the language known as ‘SMS language’ in the course of communication on the Internet by means of instant messaging or electronic mail, in Internet forums and blogs or even in online games, the number 4, if it is associated with an English word, will itself generally be read in English and understood as referring to the English preposition ‘for’.
As regards the conceptual comparison the marks at issue are identical for that part of the relevant public which is familiar with English and neutral for the remainder of the relevant public. Fifth, in the context of the global assessment, having pointed out that the earlier mark has a normal distinctive character, there is a likelihood of confusion within the meaning of Article8(1)(b)CTMR.
Posted by: Laetitia Lagarde @ 16.59Tags: general court, likelihood of confusion, forever, 4ever,
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22 January 2014 @ 08.22
I'm disappointed with two common approaches of Ohim shown in this opposition. 1 - Laetitia reports that Ohim says: the figurative element, namely the relatively banal representation of a bird of prey, is not as original and striking as the applicant suggests". This is a subjective approach. the brid is higly distinctive for a beverage and that's all. Ohim caould notice a weakness if the design was of a bottle of a fruit cointained in the beverage, but a bird is distinctive. Full stop. 2- The usual reference to the consumers of the Eu country where the prior mark is registered as interested consumers is against the principle (recently reminded in the case Omel about forfeiture) that EU has no inner borders. When a CTM is sought by an applicant, he's seeking protection for the whole EU and the fact that a mark is registered only in a country means that every European citizen going to [Portugal in this case] - due to free circulation - might be affected by the confusion.
