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Puma in General Court: of cats and copycats

In Case T-692/14, the General Court annulled the decision of the Board of Appeal which had dismissed the following opposition:

Contested CTM- Sinda Poland Corporation sp. z o.o.

Earlier rights - Puma SE

Image not found

Earlier IRs No. 593987 Image not found

and No. 480105

Image not found

valid in among others, Benelux, Bulgaria, Czech Republic, Spain, France, Italy, Hungary, Austria, Poland, Portugal, Romania, Slovenia and Slovakia

Class 25- shoes, sports shoes

Classes 1 to 42

Classes 18, 25 and 28


OHIM had rejected the opposition on the following grounds: the earlier marks are made ​​up of an animal that can be considered as a wild cat or puma leaping to the left whereas the contested mark seemed to be composed of two or more animals together in one, and even if it is impossible to distinguish a specific animal, parts of the body of the creature represented resembled parts of different animals. 

Visually, the Board of Appeal considered that the signs  did not coincide at all. Conceptually, the the signs would not be perceived as referring to the same concept. Phonetically, the figurative marks could not be pronounced and, at most, their visual and conceptual content can be described orally and that such a description necessarily coincide with either the visual perception or the conceptual perception. Given the different impressions produced by the marks at issue on the visual and conceptual, they would be described differently. To the extent that Article 8 (1) b) of CTMR presupposes as an indispensable condition that the signs are identical or similar, the BoA held that the fact that the signs were different overall can not be offset by a highly distinctive character or the repute of the earlier marks or by the alleged identity of the products.

Firstly, the BOA erred in finding that the average consumer was likely to be more attentive because it is well-established case-law that for consumer goods, the level of attention of the consumer will be average.

Second, the BoA erred in its assessment of the visual comparison. The Court found that the mark applied for and the earlier mark registered under number 480105 are both black silhouettes of animals in similar jumping positions with their feet on the ground, the front legs bent under the jaws and tails of animals forming similar angles to the trunks. The curves of the back and belly of the two animals depicted are not identical but have undeniable similarities.

The Board of Appeal thus failed in its visual comparison, to weigh the similarities elements and the difference between those marks, and therefore did not base its analysis on the overall impression produced by those signs, in violation of the well-established case- law (see judgment of 12 June 2007, OHIM / Shaker C-334/05 P) and the imperfect recollection of the consumer (judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C -342 / 97,)

 Therefore, the Board of Appeal wrongly stated that the signs in question coincided in nothing" to the extent that it did not take into account all the relevant factors in its comparison and failed to identify the similarities between the signs.

Posted by: Laetitia Lagarde @ 15.23
Tags: General Court, puma, cats,,
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MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.

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