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General Court: how many flats are too many?

In Case T-713/13, the following opposition was appealed before the GC :

9Flats GmbH (Germany)

Tibesoca SL (earlier Spanish marks)


Classes 36, 38, 39 and 43

Class 43 including accomodation and travel services


The relevant territory is Spain and the relevant public is the general public, reasonably well informed and reasonably observant and circumspect, showing an average level of attention.

Regarding the comparison of the services at issue, the Board of Appeal upheld the finding of the Opposition Division relating to services deemed identical or similar, with the exception of ‘services' rental and / or brokerage of sports equipment, namely diving equipment, water sports for equipment rental and / or brokerage of sports equipment, namely bicycle "in Class 39 covered by the mark applied for.

Regarding the comparison of the signs, the Board of Appeal considered that they are similar visually and phonetically, but not conceptually. First, with regard to the applicant's argument that the Spanish public would understand the meaning of the word "flats" to mean a dwelling, it is a simple unsupported assertion. The cases relied on by the applicant, on the understanding of English in the Scandinavian countries, the Netherlands and Finland, is not relevant in assessing the understanding of this language by the Spanish public. In this regard, the Court, however, considered that the degree of familiarity of the Spanish public with the English language was generally held low (see Judgment of 18 April 2007 House of Donuts / OHIM). The word "Flats" is not a base word in the English language, the Board of Appeal rightly considered that it would be understood by the Spanish public. Therefore, is also irrelevant the applicant's argument that the word "casa", which is the Spanish translation of the English word "Flats" is descriptive for hosting services.

 Next, as regards the applicant's argument that the element "Flats" is descriptive in the English language, and must remain available throughout the Union, it suffices to note that the fact that there for economic operators, the need for availability of a sign can not be part of the relevant factors in assessing the existence of a risk of confusion

Consequently, since the earlier mark has a normal distinctive character, the Board of Appeal rightly concluded that, as regards the services in question considered as identical or similar, there was a likelihood of confusion between the signs.


Posted by: Laetitia Lagarde @ 15.13
Tags: General Court, likelihood of confusion, 9flats; 50flats; ,
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