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WEDNESDAY, 4 JUNE 2014
General Court: FreeLounge v. Free
In another Free saga Case (Judgment T-161/12) the General Court had to review the following opposition brought on the basis of article 8 (1) and 8(4) CTMR.
Conradi + Kaiser GmbH - contested CTM
Free SAS – earlier French rights
Free.fr domain name
FREE –trade name
Classes 16 Periodicals, magazines, prospectuses, newspapers.
35 Advertising, distribution of promotion material (flyers, prospectuses, printed matter).
41 Online publication of electronic books and periodicals, publication of periodicals and books in electronic form, including on the Internet.
“online information distribution service, including by Internet, computer terminals, image and message transmission assisted by computer; general messages inbox services; audiovisual communication services; etc "
under class 38
The Opposition Division upheld the opposition entirely. The Board of Appeal annulled partly the OD’s decision finding that the contested services in Class 41 were dissimilar from the earlier figurative mark’s services because they were aimed at a different public (online publication of books being addressed at companies or individual authors v. online information distribution is aimed at the consumer in general). Further, the distribution channels would be different since Internet service providers usually don’t offer online publications services.
However the General Court held that contrary to OHIM’s findings, the meaning of Class 41 of Nice classification is not limited to text or images editing for its future publication, it just refers t o the action of distributing information or document to the public. Further, online information distribution service may also aim at distributing content for information purposes such as news or periodicals. Moreover, those services are all shared online. Therefore, overall those services are similar. The GC confirmed the findings regarding the similarity of Class 16 and Class 38 services (See judgment T-365/09 “Free”) since in this day and age the public can access the same information both online and in printed form.
The Court annulled the Board of Appeal’s decision regarding the comparison of the services in Class 41 and remanded it back to the Boards because the BoA did not examine the likelihood of confusion between the signs with regards to the contested services in Class 41.
Posted by: Laetitia Lagarde @ 17.29
general court, likelihood of confusion, free, freelounge, publication services, online informations services,
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