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MONDAY, 22 SEPTEMBER 2014
Battle of the Polo players in General Court (Part 2)

In Case T-265/13, the General Court examined another opposition brought on the basis of the famous polo player by Polo/Lauren.

Freshside Ltd- contested CTM

Earlier marks

 Image not found

CTM &

Austria

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Classes 18, 25 and 28 

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 mark.

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
Tags: General court, likelihood of confusion, polo players, bicycle polo,
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