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In Case T-227/13, both OHIM and the General Court upheld the following oppostion:

Bayer Intellectual Property GmbH – contested CTM

Interhygiene GmbH -earlier CTM



Class5 ‘Preparations for destroying plants and vermin, insecticides, herbicides, fungicides

Class 5: ‘Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes; dietetic substances adapted for medical use, food for babies; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides

The relevant public consists of both general end consumers and of horticultural and agricultural specialists in the European Union, and that public has a high level of attention.

The Board of Appeal found that the goods covered by the marks at issue were identical, for example the ‘fungicides’ and ‘herbicides’ covered by the earlier mark fall into the broader category of ‘preparations for destroying plants’ covered by the mark applied for.

The marks have an average degree of visual and phonetic similarity. However, from a conceptual point of view, the Court held that the Board erred in finding a neutral assessment. Even if the word ‘interfog’ does not have any conceptual content, the part of the relevant public that has a sufficient knowledge of English is liable to understand the word element ‘fog’ as signifying low-lying water droplets suspended in the air. However, this word element, when combined with the word element ‘inter’, is not such as to endow the earlier mark with a clear and determinate meaning. By contrast, the mark applied for is composed of the English word ‘interface’, which is a technical term used particularly in the field of information technology and has a semantic content not only in English but also in other EU languages, a fact which OHIM indeed acknowledged at the hearing.

It follows that the Board of Appeal ought to have concluded that there is a certain conceptual difference between the marks at issue.

Further, the distinctiveness of the earlier mark is average and the opponent had not claimed any enhanced distinctive character acquired through use.

Moreover, OHIM and the Court rejected the applicant’s arguments based on the supposed coexistence of earlier marks sharing the prefix ‘inter’. In the light of those various factors, and taking account of the presence of that prefix at the beginning of each of the marks at issue, there is a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009.

Posted by: Laetitia Lagarde @ 19.04
Tags: General court, interface, interfog, likelihood of confusion,
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