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CLASS 46


Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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FRIDAY, 10 OCTOBER 2014
General Court: T (fig.) v T(fig)

In Case T-531/12 Tifosi Optics v OHMI - Tom Tailor, the General Court dismissed the appeal in the following T-opposition:

 

Tifosi Optics Inc (USA)- contested CTM

Tom Tailor (Germany) –earlier CTM

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Class 9: ‘Optical apparatus and instruments; spectacles; sunglasses; frames; cases; hinges; arms and lenses for spectacles and sunglasses, parts and fittings therefor; visors; binoculars; ski masks; protective helmets and goggles, parts and fittings therefor; contact lenses and containers therefor’;

 Class 25: ‘Clothing, footwear, headgear’

 

Class 9: ‘Optical apparatus and instruments; eyewear; eyeglasses; sunglasses; lenses; eyeglass cases and sunglass cases; parts and fittings for all the aforesaid goods’;

 Class 25: ‘Men’s and women’s clothing; t-shirts, shirts, jeans, pants, shorts, leather pants, chaps, sweaters, jackets, vests, skirts, dresses and footwear; articles of outerclothing

 

 

The Board of Appeal annulled the Opposition Division’s decision, upholding the opposition:  the identity and similarity of the goods concerned and the degree of similarity between the marks, considered cumulatively, were sufficiently high to justify the conclusion that there was a likelihood of confusion, even in a case involving an earlier trade mark of weak distinctive character.

The General Court firstly confirmed that the relevant public consists of both professionals and the general public, with the professionals having a higher level of attention than the average consumer. As acknowledged by all the parties, although the relevant public’s degree of attention is average as regards most of the goods involved, it is higher than average for some of the goods in Class 9: the sophisticated or technical nature of some of those goods, such as optical apparatus, requires more in-depth consideration on the part of consumers.

As regards the comparison of good, the GC confirmed most of the findings of the BoA that they are either identical or similar , such as that  visors; ... ski masks; protective helmets ..., parts and fittings therefor’ in Class 9 covered by the mark applied for are similar to the ‘articles of outerclothing’ in Class 25 covered by the earlier mark.

Regarding the comparison of the signs, the GC also found that the trade marks are visually similar and aurally identical. However, it held that the the BOA was wrong in finding the letters T conceptually identical. There is well-established case-law that  the letters of the alphabet have no semantic meaning and that it is thus impossible to compare them conceptually.

Even if it is accepted that the earlier trade mark has a weak distinctive character, taking the imperfect recollection which the relevant consumer will have of the marks at issue, the decision of the BoA must be approved in so far as it found that there was a likelihood of confusion between the marks at issue in respect of all the goods.

 

Posted by: Laetitia Lagarde @ 18.40
Tags: general court, likelihood of confusion, T, similar, identical goods,
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MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.


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