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General Court: Cat&Clean v. Clean Cat
The General
Court just issued a Judgment in Case T-587/13 (cat&clean) where
our dear colleagues at IPKat make the relevant consumer per excellence.
Mrs Schwerdt
filed for the CTM (here left) for class 31 “cat litter”. Iberamigo SA filed an
opposition on the basis of earlier Spanish word mark CLEAN CAT (a pleonasm in itself) for “litter soil” in Class 31.
Both the
Opposition Division and Board of Appeal granted the opposition: visually, the
conflicting signs coincide with the words "cat" and
"clean", although they are not placed in the same order, and differed
in their figurative elements. Aurally, the signs at issue were similar to a
medium level and, conceptually, those signs convey the same concept, except for
part of the Spanish public who doesn’t understand English. The earlier mark has a distinctive character.
Thus there is a likelihood of confusion between the signs for identical goods.
The General
Court rejected the first plea in law brought by the CTM applicant and confirmed
the risk of confusion on the grounds of Article 8 (1) b)CTMR.
The appellant saw
its two other pleas in law rejected as well:
1)
the
claim that the possible to register a descriptive sign such as “Clean cat” for ‘cat
litter’ in Spain would constitute a disguised restriction on trade contrary to
Article 34 TFEU. The Court dismissed this argument reminding the applicant that
the distinctive character of the earlier mark cannot be disputed in the context
of an opposition procedure (see Judgment
of 24 may
2012, Formula One Licensing/OHMI).
2) As regards an alleged violation of articles 16 and 20 of the Fundamental Rights convention, article 17 provides for the “peaceful enjoyment of property rights” including IP rights, therefore the opponent has an intellectual property right that has not been challenged, and which effects which cannot be challenged in these proceeding.
The GC dismissed the appeal.
Posted by: Laetitia Lagarde @ 14.11Tags: General court, cat, clean, litter,



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