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General Court: Gummi bear-rings v. Gummy

In Case T-210/14, the General Court dismissed the appeal regarding the following opposition:

CTM applicant-Mederer GmbH

Opponent-  Cadbury Netherlands International Holdings B V

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Confectionery consisting of or containing fruit gum and/or foam sugar and/or jelly and/or liquorice, all of the aforesaid goods not for medical purposes’ in Class 30

'confectionery’ in Class 30


Both instances at OHIM upheld the opposition. The relevant territory is Spain and the goods are directed at the general public, which is deemed to be reasonably observant and circumspect. The goods at issue were identical.

Concerning the comparison of the signs at issue, those signs are similar on account of their visual and phonetic similarities, found in relation to the element ‘gummy’ of the earlier trade mark and the initial element ‘gummi’ which despite its small size, remains clearly identifiable within that sign and attracts the attention of consumers, since it is the first word element, is in a central position and because of the use of the double letter ‘m’, which is unusual in Spanish.  As regards the conceptual comparison of the signs, the earlier trade mark had no meaning in Spain, since the term ‘gummy’ is perceived as fanciful by the Spanish public. In the light of the similarities referred to, the CTM application could be perceived as a variant of the earlier trade mark. Moreover, it is rather likely that the relevant public would identify that element 'gummi’ would be retained as the company identifier and thus retains a distinctive role, whereas the terms ‘bear-rings’ could be understood as designating the content of the packaging. Therefore, in spite of the low visual similarity of the signs, there is a likelihood of confusion according to Article 8 (1) b) CTMR.

Posted by: Laetitia Lagarde @ 18.53
Tags: General court, gummy, gummi, bears,
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