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FRIDAY, 19 SEPTEMBER 2014
Battle of the Polo players in General Court (Part 1)
In Cases T-90/13
The Polo/Lauren Company LP successfully opposed a CTM application on the basis
of its earlier TM’s representing a polo player.
CTM - Herdade de
S. Tiago II — Sociedade Agrícola, SA (Portugal)
Classes 3, 18, 25,
28, 41 and 43
Classes 9, 18, 20, 21, 24 and 25
Opposition Division partially upheld the opposition and rejected, on the basis
of Article 8(1)(b) of Regulation No 207/2009, the CTM application in
respect of the ‘games and playthings’ in Class 28 and all of the goods in
Classes 18 and 25, with the exception of ‘whips, harness and saddlery’ in Class
18. It also rejected, on the basis of Article 8(5) of CTMR, the contested
CTM in respect of the ‘soaps, perfumery, essential oils, cosmetics and hair
lotions’ in Class 3, the ‘gymnastic and sporting articles not included in other
classes’ in Class 28 and the ‘sporting activities, organisation of exhibitions
for sporting purposes; sporting activities, including organisation of sports
competitions’ in Class 41. By contrast, the opposition was rejected in respect
of the other goods and services.
The second Board of
Appeal of OHIM found, in essence, that the OD had not erred in finding that
there was a likelihood of confusion between the signs at issue, within the
meaning of Article 8(1)(b) and 8(5) of CTMR, in the light of the identity
of the goods concerned and the similarities between the signs at issue and the
enhanced distinctive character acquired through use of the earlier marks in
respect of certain goods in Classes 18 and 25.
General Court confirmed the findings of OHIM regarding the similarity of the
goods and the signs. At the visual level, the signs at issue have the
figurative representation of a polo player in common. In particular, the horse
seems to be in motion and the polo player is holding a mallet in his hand.
Although the figurative representations contain differences, those differences
do not make it possible to come to the conclusion that there is no similarity
between the figurative elements in the signs at issue. In all the cases, the
relevant consumer will distinctly identify, and remember, a polo player (see, to
that effect, judgment of 18 May 2011 in Case T‑376/09 Glenton España v OHIM —
Polo/Lauren (POLO SANTA MARIA),
paragraph 33). Furthermore, although the letter ‘v’, which is used
in the mark applied for, also plays a non-negligible role in that mark, in view
of its position and size, it is not, however, the dominant element. Therefore the marks are visually similar to a
medium degree and identical from a conceptual point of view. The GC dismissed
Posted by: Laetitia Lagarde @ 17.41
General court, likelihodo of confusion, polo player, Polo/Lauren,
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