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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:
Optics Inc (USA)- contested CTM
(Germany) –earlier CTM
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,
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
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
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
general court, likelihood of confusion, T, similar, identical goods,
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