Log in


Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

Want to receive Class 46 by email?
Click here subscribe for free.

Who we all are...
Anthonia Ghalamkarizadeh
Birgit Clark
Blog Administrator
Christian Tenkhoff
Fidel Porcuna
Gino Van Roeyen
Markku Tuominen
Niamh Hall
Nikos Prentoulis
Stefan Schröter
Tomasz Rychlicki
Yvonne Onomor
MONDAY, 25 JUNE 2012
General Court: Yakut v Yakult

In case T-276/09, the General Court had to examine the likelihood of confusion between YAKUT, registered for Class 33 ‘alcoholic beverages (except beers)’ and earlier figurative CTM registered for Classes 29 and 32 goods ‘Beers; mineral and aerated waters and other non‑alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages’.

The Opposition Division and the Board of Appeal upheld the opposition on the basis of Article 8(1)(b) CTMR finding that the goods in question were similar, as were the signs at issue, from both a visual and phonetic point of view. It also found that the signs at issue did not convey any particular concept given that they had no meaning in the languages concerned.

The GC confirmed the conclusion of the OHIM. Firstly, well-established that case‑law establishes that the term ‘alcoholic beverages’ includes cider, as well as ‘alcopops’, and that those beverages are very similar to beer. It also follows that, apart from wines and spirits, alcoholic drinks, including beer, are consumed for the same reason and have the same distribution outlets.There is, therefore, a large degree of similarity between the ‘beers’ covered by the earlier mark and the ‘alcoholic beverages (except beers)’ covered by the mark applied for.That high degree of similarity is not called into question or lessened by the fact that there is only a low degree of similarity, or indeed none at all, between certain goods in the broad category of goods covered by the mark applied for.

Second, it should be taken into account of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but must rely on his imperfect recollection of them. From a visual point of view, it must be held that, in the two signs at issue, the letters ‘y’, ‘a’, ‘k’, ‘u’ and ‘t’ are reproduced in the same order, with the word element ‘yakult’ of the earlier sign containing only one additional letter, namely the letter ‘l’, placed second to last. First, the consumer generally pays greater attention to the beginning of a mark than to the end and, secondly, the additional letter ‘l’ and the adjacent letter ‘t’ together form ‘lt’, that is to say, tall and narrow letters which do not go below the base line. The additional letter ‘l’ is thus barely visible and, ultimately, the difference between the two signs at issue is scarcely noticeable by the average consumer, who would not remember such a subtle difference, even assuming that he had noticed it.

As for the graphic element of the earlier figurative mark, the only element capable of being distinctive consists of shapes similar to brackets which merely surround the word element ‘yakult’. That element cannot be regarded as the dominant element in the overall impression produced by the sign Yakult. It is a sort of outline, in oval form, that is to say, a simple geometric form which will not evoke any particular concept for the average consumer.

Posted by: Laetitia Lagarde @ 14.19
Tags: General court, likelihood of confusion, Yakut, Yakult,
Sharing on Social Media? Use the link below...
Perm-A-Link: https://www.marques.org/blogs/class46?XID=BHA2869
Reader Comments: 0
Post a Comment

MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.

The Class 46 Archive








+44 (0)116 2747355

9 Cartwright Court, Cartwright Way
Bardon, Leicestershire
LE67 1UE


Ingrid de Groot
Internal Relations Officer
Alessandra Romeo
External Relations Officer
James Nurton
Newsletter Editor
Robert Harrison

Signup for our blogs.
Headlines delivered to your inbox