In case T-460/11, Scandic Distilleries SA (Romania) registered the figurative CTM BURGER for Class 32 ‘beers’ and Class 35 services. Bürgerbräu, August Röhm & Söhne KG (Germany) filed a notice of opposition on the basis of earlier CTM word mark Bürgerbräu registered for Classes 21, 32 and 42.

The General Court upheld the comparison of the marks made by the OHIM: from a visual point of view, the dominant element of the mark applied for coincides with the word ‘bürger’ constituted by the first six letters of the earlier mark, thus there is low similarity.

As to the phonetic aspect, there is an average degree of similarity in view of the fact that the relevant consumers will tend not to pronounce the word elements ‘premium pils’, ‘traditional brewed quality’ and ‘original’ of the mark applied for that appear on the label. Moreover, the relevant consumers will also tend not to pronounce those elements, simply to economise on words because they take time to pronounce and are easily separable from the dominant element of the mark applied for, namely the word ‘bürger’.

The signs are conceptually similar for the German-speaking public since the word ‘bräu’ refers to the brewing of beer, which will be perceived as descriptive of the goods concerned, so that the consumer’s attention will focus particularly on the word ‘bürger’ which is contained in both signs and refer to the same concept of ‘citizen’. For the rest of the EU consumers, there is no possible conceptual comparison.

Due to the overall similarity between the signs, the Opposition Division and the Board of Appeal allowed the opposition with respect to the goods in Class 32 on the ground that there was a likelihood of confusion on the part of the target public being the average EU consumer of the goods concerned, namely beers, who was taken to be reasonably well informed and reasonably attentive and circumspect. However, it rejected it with respect to the services in Class 35, on the ground that they were different from the goods and services covered by the earlier mark.