In Case T-41/09, the General Court dismissed the appeal against the contested decision which upheld the opposition between applied for CTM BEBIO and earlier rights BEBA.
The Opposition Division upheld the opposition for the goods in Classes 5, 29 and for some of the goods in Class 30, on the ground that there was a likelihood of confusion. It rejected the opposition with regard to all the goods in Class 32, as well as the ‘tea’ and ‘tea-based beverages’ in Class 30. In view of the visual and phonetic similarity of the signs at issue, and their conceptual similarity, at least in Spanish, the Opposition Division concluded that there was a likelihood of confusion.
This reasoning was upheld by the BoA which found, essentially, that for the relevant public which was composed of average consumers in the EU (although products such as food for infants and young children are purchased with a special degree of consideration, these goods were everyday items which were not particularly expensive or ‘risky’) it was likely to believe that the goods concerned came from the same undertaking or, as the case may be, from undertakings that were economically linked; consequently, there was a likelihood of confusion between the marks.
The GC found that from a visual and aural point of view, the different endings of the signs at issue are not enough to offset, from the point of consumers, the visual similarity of the root ‘beb’.
Conceptually speaking, the Board of Appeal was right to consider that, at least for the Spanish‑speaking public, there was a conceptual similarity between the signs at issue. It is undisputed that the word ‘beba’ is the imperative of the verb ‘to drink’ in Spanish and that the word ‘bebio’is the third person singular, past tense, of that verb in that language. It should be noted that the English word ‘baby’ is understood even by a non-English speaking consumer, inter alia, by a Spanish consumer Furthermore, having regard to the dictionary definitions setting out the translation of the English word ‘baby’ in the various languages of the European Union, submitted by the applicant, the French word ‘bébé’ is translated by words that are very close phonetically in Italian (bebè), Portuguese (bebê), Spanish (bebé) and in Danish, Swedish and Dutch (baby). However, it should be noted that, in the present case, the signs at issue do not include the English word ‘baby’ or the French word ‘bébé’ but a fanciful word, which is even more remote and without any clear and specific meaning, that is to say, ‘beb’. So the Court concluded that there was no evidence that the earlier sign was weak because the words ‘bebio’ and ‘beba’ do not have a specific meaning for the non-Spanish-speaking public and, contrary to the applicant’s claims, they do not clearly refer to the concept of a baby.
Furthermore, that conclusion is not invalidated by the argument that the word ‘beba’ means ‘baby’ in the Croatian language which, according to the applicant, is a language understood by a large number of consumers in the European Union because, as Hipp itself admits, the Croatian language is known to only a limited part of the relevant public, namely certain consumers in Germany, Austria and Italy.