In Cases T-77/13, T-122/13 and T-123/13, Laboratoires Polive v OHMI - Arbora & Ausonia (DODIE), the General Court annulled the contested decisions of the Board of Appeal.

In Case T-77/13, the 2^nd  Board of Appeal of OHIM upheld the opposition in part, on the basis that there was a likelihood of confusion between the marks at issue as regards the goods above, other than the ‘thermometers for medical purposes, medical apparatus for babies, orthopaedic articles for babies’ in Class 10. The GC agreed with the following findings of the BoA: “ the relevant public is the general public in Spain, except in the case of certain goods related to health in Classes 5 and 10, which were aimed at a more attentive public;  the Spanish mark had a normal degree of inherent distinctiveness and could enjoy enhanced distinctiveness through the use made of it in relation to ‘nappies and nappy pants’ only; the goods covered by the marks at issue were either identical or similar to varying degrees: high, average or low;”

However, the Court disagreed with the conclusions regarding the comparison of signs: as regards the visual similarity, it must be observed that the final part of the mark applied for, where the diphthong ‘ie’ appears, is very unusual in Spanish and will attract more attention from the relevant public. Similar considerations apply to the final part ‘ot’ of the Spanish mark, which is likewise not common in that language. Those factors support the conclusion that, contrary to what the Board BoA found, the marks at issue, considered as a whole, display a relatively low degree of visual similarity.

 Regarding the phonetic similarity between the signs notwithstanding the same initial sequence of letters ‘d’, ‘o’ and ‘d’ in the marks at issue, the rhythm of pronunciation of each of the marks is different, or at least, the intonation falls on the parts of the marks at issue that are different. Those factors reduce very significantly the similarity created by the initial sequence of letters. Moreover, when pronouncing the word ‘dodie’, the Spanish consumer will have particular difficulty with the, very unusual, presence of a diphthong at the end of the word, whereas that is not the case with the word ‘dodot’. Consequently, contrary to what BoA found, it must be held that the marks at issue are similar to a low degree, if not to a very low degree, phonetically.

The Court upheld the finding that the signs at issue are not conceptually similar since they are devoid of meaning from the perspective of the relevant public.

In the global assessment, it must be held that the low degree of similarity of the signs does not support the conclusion that there is a likelihood of confusion in the present case, notwithstanding the similarity, if not the identity of the goods, which the BoA rightly found, and even having regard to the public, which does not display a particularly high degree of attention.

In cases T-122/13 and T-123/13, the Court reached the same conclusion for the Spanish and Portuguese consumers, highlighting the fact that the figurative element of the marks applied for depicting a rabbit is not negligible, so that it must be taken into account in the visual comparison, which further weakens the similarity of the marks at issue from that point of view .