In case T-109/11, Apollo Tyres AG (Switzerland) applied for the word sign ENDURACE for the following goods in Class 12: ‘tyres, tubes and flaps for automobiles’; Class 35: ‘advertising, business management, business administration, office functions, retail and online retail services connected with tyres, tubes and flaps for automobiles’; Class 37: ‘building construction, repair, installation services, fitting services for tyres, repair and replacement of tyres’.
Endurance Technologies Pvt Limited(India) brought an opposition based on the figurative mark ENDURANCE (represented left) registers for goods in Class 12 and covering among others ‘parts, fittings and accessories for land vehicles; automobiles and automobile components;[…] transmission chains and shafts for land vehicles; turbines for land vehicle; castings for [tyres], casting cars, casting carriages”.
The Opposition Division upheld the opposition in part on the ground that there was a likelihood of confusion within the meaning of Article 8(1)(b) of CTMR in particular, as regards the non-English-speaking section of the relevant consumers, who would not understand the meaning of the word ‘endurance’, as regards the goods covered by the trade mark application in Class 12, and as regards some of the services covered by that application in Class 35, in respect of inter alia ‘retail and online retail services connected with tyres, tubes and flaps for automobiles’. The Board of appeal also rejected the applied for mark for all of the goods covered by that application in Class 12, and for the ‘retail and online retail services connected with tyres, tubes and flaps for automobiles’ in Class 35 and the services of ‘repair’, ‘installation’, ‘fitting services for tyres’ and ‘repair and replacement of tyres’ in Class 37.
As regards the meaning of the signs, itis reasonable to consider that at least some non-English- or non-French-speaking consumers might not understand the word ‘endurance’. First, that word has no resemblance to or common root with its equivalents in languages such as, inter alia, German, in which a comparable meaning is expressed using words like ‘Dauerhaftigkeit’, ‘Durchhaltevermögen’, ‘Ausdauer’, ‘Haltbarkeit’ or ‘Dauerhaltbarkeit’, Polish (‘Wytrzymałość’) or Greek (‘αντοχή’). It is the same in, for example, Slovak (‘Vytrvalosť’, ‘Výdrž’ or‘Životnosť’), Czech (‘Vytrvalost’, ‘Výdrž’ or ‘Životnost’) or Hungarian (‘állóképesség’, ‘élettartam’,‘ellenállóképesség’, ‘szívósság’ or ‘ellenállás’).Nor, moreover, can the word ‘endurance’ be automatically considered to be a basic English word whose meaning would be understood by any European Union consumer (which differs from the precedent T‑461/09CheapFlights InternationalvOHIM’) . The signs are highly similar from a phonetic and visual point of view and therefore overall similar. Thus, the General Court dismissed the appeal.