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”.

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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.