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MONDAY, 5 MAY 2014
General Court: Elite by Mondariz v. ELITE
In Case T-386/12, the General Court annulled the decision of the Board of Appeal which found there was no likelihood of confusion between the following marks
Aguas De Mondariz Fuente del Val (Spain)
Elite Licensing (Switzerland)
CTM ELITE MODEL LOOK
CTM application and IR claimed to be well-known in Belgium, Spain, France, Luxembourg and Netherlands for services related to ‘models agencies and promotion’ in Classes 35 and 41
Classes 32 ‘mineral waters’ , Classes 38 and 39 including ‘ services related to marketing, packaging and storage of mineral waters’
Relevant Classes 32, 35, 38 and 41
Leaving aside the procedural matters which the Board of Appeal ruled on correctly, the General Court confirmed that the relevant public is made of both the average consumers and professionals for Classes 38 and 39.
It was not disputed that the goods and services were in part identical, in part lowly similar.
Whereas the GC confirmed that the dominant element in the contested CTM was ´Mondariz´, so the BoA rightly concluded the signs had a low similarity from a visual point of view and an average aural similarity, the GC found that the BoA erred regarding the conceptual similarity. Indeed, the signs share the word ‘elite’ which will be perceived as referring to the notion of exclusivity, best of a group, superiority or privilege´ so the signs share a high degree of similarity from a conceptual point of view.
In the overall assessment, even if the earlier signs have a slightly less than average degree of distinctiveness due to the slightly descriptive character for the services in question, the GC found that there will be likelihood of confusion for the relevant public.
Posted by: Laetitia Lagarde @ 15.57
General Court, likelihood of confusion, Elite, Elite by mondariz,
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