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MONDAY, 28 OCTOBER 2013
General Court: AQUA FLOW v VAQUA FLOW
In Case T-417/12, SFC Jardibric (France )
applied for the figurative mark AQUA FLOW for goods in Classes 6, 11, 17 and 21
for among others “watering systems and installations”. The intervener Aqua
Center Europa SA (Spain) brought an action for partial invalidity based on
Article 8 (1) b) CTMR and earlier Spanish right VAQUA FLOW registered in Class
11 for “apparatus of distribution of water”.
The Cancellation Division and the Board of Appeal upheld
the application for a declaration of invalidity for the goods in Classes 6, 11
and 21 and rejected it for Class 17. First, reminding that the CTM system is independent
from national systems, it found that the registration of the contested CTM postdated
the Spanish mark VAQUA FLOW and considered irrelevant that the Applicant owns even earlier rights in
France. Next, it found the applicant had failed to produce evidence of the
intervener’s acquiescence in the use of the contested CTM in its territory for
a period of five years. Namely, there was a commercial relationship but the
evidence submitted (for the most part late and thus not taken into account)
made it difficult to interpret the nature of it. Even if the intervener
purchased goods under the French trade mark AQUA FLOW and it was therefore
aware of that mark , this does not however mean that it was aware of the CTM or,
a fortiori, that it acquiesced in the use thereof in Spain.
The relevant consumer consists mainly of a
professional public involved in the watering and irrigation industry, but also
of members of the general public, namely do-it-yourself enthusiasts whose
degree of attentiveness is higher than average. Furthermore, the inherent
distinctive character of the earlier mark is average. Lastly, the marks at
issue are conceptually similar and visually and phonetically similar to an
average degree, the Board concluded that there was likelihood of confusion. The
General Court dismissed the appeal.
Posted by: Laetitia Lagarde @ 08.27
general court, likelihood of confusion, aqua, flow, water, acquiescence,
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