In Cases T-225/12 and T-226/12, Lidl Stiftung & Co. KG (Germany) applied for these figurative signs sought for Class 15 ‘ musical instruments’

Lídl Music spol. Sr.o. (Czech republic) opposed it on the basis of earlier Czech mark registered for the identical goods.

Both the Opposition Division and Board of appeal upheld the oppositions for all the contested goods, on the basis of the earlier national mark. Even though it considered that the documents submitted by the opponent were ‘not particularly exhaustive’, it accepted that they were sufficient to prove use of the earlier national trademark for flutes and harmonicas.

The General Court first examined the proof of use claim. As demonstrated by the evidence produced by the opponent, the earlier national mark was used in the following form:

The figurative elements of the earlier mark, as registered, are limited to the stylistic presentation of the two word elements. Those decorative elements do not play any significant role in the overall impression of the sign and have no inherent semantic content of their own which would lend the mark distinctive character or designate the goods concerned (see, to that effect and by analogy,REVARO, paragraph 25).

Thus, the Board of Appeal did not commit any error of assessment in holding that the figurative elements of the mark as registered were negligible, so that the use of the mark as demonstrated by the opponent was not likely to alter the distinctive character of the mark and met, therefore, the requirements of Article15(1)(a) and Article42(2) and (3) of CTMR.

Second, the contested trademarks are similar from the visual and aural points of view, on the ground that they shared the same distinctive and dominant element constituted by the word ‘lidl’. The differences in the way that the marks are represented are not therefore of such a nature as to outweigh the striking identity of the word element ‘lidl’. Moreover, a conceptual comparison is not possible, given that the conceptual content of the words ‘lidl’ or ‘lídl’ for a Czech-speaking consumer does not seem open to explanation. Thus, the dominant element in both of them is the word ‘lidl’, and that word is inherently distinctive in the field of music. The word ‘lidl’ is accompanied by the word ‘music’ in the earlier mark, but that word is so commonplace that it will be understood by most average consumers as a reference to the purpose of the goods.

Therefore, the General Court dismissed the appeals and confirmed a likelihood of confusion for the goods in question.