In 27 February 2009, the applicant Tangram Interactive S.A. filed the Spanish Trademark no. 2865879 for TANGRAM (fig.) for advertising, business management, business administration and office functions in Class 35. Against this trademark Mr. Joan Alum Canaletas filed an opposition grounded on the likelihood of confusion with its prior Spanish trademark no. 2619875 TANGRAM ESTUDI GRAFIC (fig.), registered in Class 42 for graphic design related services. As a result, the trademark application no. 2865879 for TANGRAM (fig.) was refused. The refusal was confirmed by the Spanish Patent and Trademark Office under appeal in 13 January 2010. A few months later, in 19 October 2010, the opponent Mr. Alum Canaletas filed a letter with the Spanish Patent and Trademark Office by which he withdrawn the opposition after he reached an agreement with the applicant. By then the applicant had filed a further appeal before the Administrative Court ("Tribunal Superior de Justicia"). The opponent did not file an answer to the claim (this is optional, as the defendant in administrative appeals is actually the Spanish Patent and Trademark Office), andthe State Attorney ("Abogado General") said in its answer that he would not oppose against the Administrative Appeal since the only reason for keeping the refusal did no longer exist. Indeed, under the Spanish Trademark Law (Ley 17/2001 de Marcas), the relative grounds for refusal are only examined under opposition of the concerned party. But how is this coupled with the reviewing function of the Administrative Courts and the fact that the Spanish Patent and Trademark Office's decision was right in finding likelihood of confusion insofar the opponent did not consent by then to the registration?

The Administrative Court confirmed the refusal of the trademark, and grounded its decision on the likelihood of confusion with the opposing trademark to the applicant's surprise. But on the further appeal, the Supreme Court (Chamber 3^rd) Judgment of 27 November 2014 RJ\2014\6035 dissented, and found the lower Court's decision unfair. There was not a single word about the late opponent's explicit consent to the registration of the applicant's trademark, and that breached in its opinion one of the essential rules governing the judicial decision taking, that is to say, consonance with the specific petitions of the claim. Vested in its powers, the Supreme Court annulled the lower Court's decision and proceeded with the examination of the particular case. It established that such a consent was relevant to reverse the Spanish Patent and Trademark Office's refusal because:

1. it was given before the applicant filed the administrative claim (irrespective of having been given after the Spanish Patent and Trademark's office decision); and

2. the conflicting trademarks subject-matter of the agreement were not identical (this reader is unable to find the specific legal ground for this requisite); and

3. the documents regarding the agreement were produced at the initial stage of the judicial proceeding; and

4. the Spanish Patent and Trademark Office did not contest the administrative claim of the applicant.  

As a result, it ordered that the trademark application no. 2865879 for TANGRAM (fig.) should be granted for registration.