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General Court: Ram pushes Bellram ..and nothing could stand before it
In Case T-237/11, the General Court had to review the assessment made by OHIM in the comparison between the following signs on the grounds of Article 8(1) (b) CTMR.
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CTM Applicant –Lidl (Germany) |
Lactimilk SA – Earlier Spanish marks |
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BELLRAM |
RAM
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Class 29 Cheese |
Class 29, among others “Fresh milk, condensed milk and powdered milk, cheese, butter, yoghurt, kefir, and other derivatives of milk’ |
The GC upheld the findings that the likelihood of confusion between the marks at issue must be assessed with regard to the average Spanish consumer.
As only proof of registration of the earlier word mark had been adduced by the opponent, the assessment of the likelihood of confusion could be undertaken only with respect to that mark, to the exclusion of the two earlier figurative marks. Second, in the context of the assessment of the likelihood of confusion between the mark applied for and the earlier word mark, the proof of the genuine use of the earlier word mark had been adduced only for ‘milk, cream, milk drinks in which milk is the predominant ingredient’, so that that mark could be deemed to be registered only for those goods.
Next, there is a similarity between ‘milk, cream and milk drinks in which milk is the predominant ingredient’ covered by the earlier word mark and ‘cheese’ covered by the mark applied for, and they have the same distribution network, that is to say in the same sections of those supermarkets as milk products.
In the light of those findings, the OHIM correctly that there was a likelihood of confusion between the mark applied for and the earlier word mark, even though the earlier word mark had only average distinctiveness.
Tags: GEneral court, bellram, ram, milk, cheese,
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