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.

Contested CTM - Herdade de S. Tiago II — Sociedade Agrícola, SA (Portugal)	Earlier marks
	CTM/Benelux   UK
Classes 3, 18, 25, 28, 41 and 43	Classes 9, 18, 20, 21, 24 and 25

The 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.

The 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 the appeal.