In Case T- 623/11, the General Court had to review a 'creamy fudgy' appeal regarding the following opposition

Both the Opposition Division and the Second BoA of OHIM dismissed the appeal. In essence, the differences between the signs at issue are sufficient to avoid any likelihood of confusion, in spite of the identity of the goods at issue and the reputation which the first and second earlier marks might have. That finding appliesa fortiorito the other marks relied on in support of the opposition, which differ even more from the mark applied for.

The General Court dismissed the appeal. It found that the relevant public is the average German consumer. The mere fact that the relevant public makes an impulse purchase for sweets does not mean that that public’s level of attention is lower than that of an average consumer.

The signs at issue exhibit significant visual differences. The mark applied for consists in part of a yellow background with white vertical stripes. Furthermore, the stripes in the first and second earlier marks are arranged vertically, but one of them is also arranged horizontally. In this respect, there are also significant differences with the third earlier mark which contains only four vertical stripes, two of which are placed at either side of the figurative element of the sign concerned.

Moreover, the signs at issue also differ visually inasmuch as the mark applied for contains two frames, one containing the figurative representation of a cow and the other containing the word elements ‘zpc ® milanówek’. The frame containing the figurative representation of a cow differs in shape from the frames used in the earlier marks. It also has four ornaments.The frame containing the word elements ‘zpc ® milanówek’ is superimposed on the frame containing the figurative representation of a cow. The visual perception of the frame containing the word elements ‘zpc ® milanówek’ is therefore enhanced as a result.

In addition, the signs at issue differ inasmuch as the mark applied for contains the word elements ‘milanówek’, ‘zpc ® milanówek’ and ‘cream fudge’, which are not used in the earlier marks, with the exception of the expression ‘cream fudge’ in the third earlier mark. It must be borne in mind that where a trade mark consists of word and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more readily refer to the goods in question by citing the name than by describing the figurative element of the trade mark. The earlier marks have words 'Sahne Muh-Muhs HANDGESCHNITTEN HANDGEWICKELT and SAHNE TOFFEE LUXURY' which are very different from the contested CTM.

Furthermore, the representation of a cow has an allusive character in relation to the goods at issue, in particular ‘made by using milk, cream and/or butter’.and therefore has a weak distinctive character.

Conceptually the relevant public will either know the name of the town ‘milanówek’ or consider that word element to be an invented term. In those circumstances, there is nothing to permit the inference that the BoA erred in finding that the similarities between the signs at issue were not sufficient to conclude that there was a conceptual similarity.

Therefore the is no likelihood of confusion between the signs at issue.