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MONDAY, 22 SEPTEMBER 2014
Battle of the Polo players in General Court (Part 2)
T-265/13, the General Court examined another opposition brought on the basis of
the famous polo player by Polo/Lauren.
Classes 18, 25 and
Classes 9, 18, 20,
21, 2 and 28
Both the OD and BoA rejected the opposition finding
that the signs at issue were dissimilar overall and that there could therefore
be no likelihood of confusion. Furthermore, since the signs at issue were not
similar, one of the cumulative conditions for the application of
Article 8(5) of CTMR was not satisfied.
The GC annulled the contested decision for the following
reasons. It disagreed with the BoA’s reasoning that the graphic representation
of a bicycle in the contested CTM constituted the dominant element of that
In fact, it must be borne in mind that the average
consumer normally perceives a mark as a whole and does not engage in an
analysis of its various details. From a visual point of view, it must be
pointed out that the graphic representation of a bicycle occupies an amount of
space similar to that of the graphic representation of a person holding a polo
mallet, with the result that one of those representations cannot be given more
weight than the other. Furthermore, the fact that the polo mallet is situated
above the polo player has the effect of making that accessory clearly visible
in the representation of the signs at issue. That element cannot be regarded as
negligible in the signs at issue.
It is correct that the horse is galloping towards the
left, whereas the bicycle is going towards the right. However, given the angles
used, including that used for the polo mallet, and the relative dimensions of
the signs at issue, a visual comparison of those signs gives the impression of
a certain symmetry.
As regards the
applicant’s argument that the game of “bicycle polo” would be an ‘emergent energetic
urban sport … set in the tennis courts and school yards’, the Court held that the graphic representation
of that ‘emergent’ sport is not capable of having a sufficiently clear and
specific conceptual meaning for the relevant public. Consequently, in addition to the fact that any
conceptual differences between the signs at issue are not clear enough to
counteract the conceptual similarities between those signs, they are not
capable of counteracting the visual similarities that have already been found
to exist. Thus the signs must be found
overall similar and the case is sent back to the Boards of appeal to make a new
assessment on whether there is a likelihood of confusion.
Posted by: Laetitia Lagarde @ 17.45
General court, likelihood of confusion, polo players, bicycle polo,
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