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TUESDAY, 29 MARCH 2011
Natural selection for trademarks
In Judgment T-54/09, the General Court confirmed likelihood of confusion between the two figurative trademarks - contested CTM ‘LINEA NATURA Natur hat immer Stil’ registered for goods in classes 8, 14, 16, 20, 21, 24, 25 et 27 and earlier CTM ‘NATURA SELECTION’ -which goods were found identical or similar by the Office, and not contested by the Appellant.
The Court censored the findings of the Board of Appeal which held that the word element ‘ NATURA’ was dominant in the earlier mark and that the figurative element representing the ‘earth globe’ would only evoke an international character and thus would have a low distinctive character. In fact, the Court found that the ‘earth’, along with the word ‘natura’ will be perceived by the consumer as the planet Earth and its central position and size as well as the naïve manner in which it is represented, does not allow to exclude it from the visual comparison. Contrary to the appellant’s claims, the way it is represented will not be reminded overall by the consumer, overshadowing the word elements, but its supposedly weak distinctive character could be compensated by its central position and would confer it an equal value to the word element.
The differences between the two signs do not counterbalance the presence of the common word element “natura”. The BoA rightly found that it has a normal distinctive character: even though it is a Latin word meaning ‘nature’ in Spanish (root of ‘naturaleza’) and Italian with close equivalents in English and German (Natur), this term can be understood by a majority of EU consumers as evoking natural or ecological things, without necessarily being descriptive for the goods and services in question. Thus, the trademarks have a low degree of visual similarity.
The fact that the trademarks share the distinctive word ‘natura’ and that the other verbal elements have a low distinctiveness, is sufficient to find a certain degree of phonetic similarity.
As regards conceptual similarity, the earlier sign is not descriptive for the registered goods. Thus , in the present case, since the signs share the word ‘natura’ with the highest distinctive character, the consumers could be lead to believe that the contested CTM ‘Linea Natura Natur hat immer Stil’, is a sub- brand of the goods produced by the earlier mark ‘Natura selection’ and come from economically-linked companies.
Posted by: Laetitia Lagarde @ 12.38
General court, Natura, likelihood of confusion,
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