In Judgment T-665/13, the General Court dismissed the appeal regarding the following opposition:

The Opposition Division partially upheld the opposition except for the following goods, which were considered to be different from the goods of the earlier trade mark:

Class 9: ‘scientific, nautical, surveying, weighing, measuring, checking (supervision), regulation and management of electricity apparatus and instruments’ ; Class 42: ‘scientific and technological services and research and design relating thereto; industrial analysis and research services’.

The Fourth Board of Appeal of OHIM annulled that decision of the OD and rejected the opposition in its entirety. It found the goods and services covered by the trade mark applied for were either similar or identical to those designated by the earlier trade mark, except the ‘life-saving apparatus and instruments’, which were different.

However, regaring the signs, it found there was a low degree of visual, aural and conceptual similarity despite the fact that they contain the expression ‘spin bingo’. That expression is descriptive of an essential characteristic of the relevant goods and services. On a visual level, regarding the earlier sign, the public would pay attention to the more distinctive element ‘zitro’, which is devoid of any meaning in the relevant languages and is at the beginning of the sign. Concerning the contested sign, in the light of the descriptive meaning of the expression ‘spin bingo’, consumers will pay as much attention to the different colour elements of the device which are the circles and the reel on which there is a representation of a smiling face. On the aural level, the similarity is weak as well, in the light of the descriptive meaning of the expression ‘spin bingo’, and the fact that the public will pay attention to the more distinctive element ‘zitro’. On the conceptual level, the word ‘zitro’ is dominant and it's not conceptually similar to the contested sign.

Finally, concerning the global assessment of the likelihood of confusion, the distinctive character of the earlier trade mark ZITRO SPIN BINGO is average.

Further, the similarity between the signs was limited to the expression ‘spin bingo’, which has a purely descriptive meaning, and which cannot constitute the dominant element of the overall impression produced by the sign of a complex trade mark, and, therefore, which also cannot, in itself, form the basis of a likelihood of confusion.

The Board of Appeal held in that regard that, although some of the goods and services are identical and assuming that the public’s level of attention is only average, the low degree of visual, aural and conceptual similarity between the signs excluded any likelihood of confusion, including a likelihood of association, which could not be based on elements which are not distinctive.