In case T-505/10, Höganäs AB (Sweden) registered the word mark ASTALOY for ‘Iron-based metal powders for industrial use’ which was opposed by Haynes International, Inc. (U.S.) on the basis of earlier CTM HASTELLOY also registered for goods in Class 6 :‘Unwrought and partly wrought common metals and their alloys; common metals in the form of sheets, plates, bars, rails, castings, forgings, billets, pipes and tubes; welding rods, dies, valves, cables, wires, wire powders’.

The General Court upheld the decision of the Board of Appeal which found there was a likelihood of confusion for the EU public, namely professionals in the field of metallurgy, for the similar goods.

The marks have no particular meaning in themselves. Even if the signs in question may be perceived as evoking an alloy, the ending of the marks does not exactly correspond to the English word in question. Rather, that evocation accentuates more the visual and phonetic similarities in the signs at issue.

The GC also looked closely at the evidence submitted by the CTM’s applicant to support the alleged co-existence of the signs on the market and in particular affidavits from a former employee and a consultant in the field of power metallurgy. However, it did not fulfill the criteria required by case-law. The long period of co-existence was not proven nor did the evidence cover all Member States: the only sales information provided under the mark ASTALOY in the EU prior to 17 June 2004, the date of the filing of the CTM application, had not been broken down by geographical region. Further, none of the 2 affidavits came from consumers of the products at issue and did not demonstrate any absence of actual confusion.

Therefore, even taking into account the high degree of attention paid by the public, it cannot be ruled out that that the marks could create an association as to the commercial origin of the products.