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Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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Polar and Polaris held insufficiently similar to confuse discerning consumers

The Court of First Instance of the European Communities (CFI) gave its ruling this morning in Case T‑79/07, SHS Polar Sistemas Informáticos SL v Office for Harmonisation in the Internal Market, Polaris Software Lab Ltd.

An Indian company, Polaris Software, sought to register a a Community trade mark the figurative mark Polaris (above) for, among other things, a large range of software for use in financial transactions in Class 9. Polar Sistemas opposed, citing its earlier Community trade mark Polar, registered in Class 9 for 'computers, computer programmes (recorded), recorded operating system programmes (for computers); the aforesaid goods not for use in the graphic trades, printing industry, print converters and similar trades’.

The Opposition Division accepted that there was a likelihood of confusion and upheld the opposition. The Second Board of Appeal annulled this decision and rejected the opposition. It considered that, while they covered identical goods (software for use in financial institutions), the conflicting signs were conceptually different and had sufficiently distinctive visual and aural features to rule out a likelihood of confusion on the part of the relevant public -- being a circumspect and attentive group of staff in financial institutions responsible for the acquisition of the specialist software in question. Polar Sistemas appealed.

The CFI this morning dismissed the appeal. Its comments on alleged conceptual similarity between the marks are worthy of note:

"43 So far as the conceptual comparison is concerned, the parties agree on the fact that the word ‘polar’ has, in many languages, a clear meaning linked to the poles of the earth, while the meaning of the word ‘polaris’ is generally not known by the consumer concerned.

44 In that connection, the Board of Appeal’s finding that the consumer concerned will perceive the word ‘polaris’ as fanciful and will not necessarily associate it with the poles of the earth ... is not called into question by the applicant’s argument that the two words concerned are very close, so that one can be perceived as being derived from the other. The fact that the words have the same root does not necessarily mean that they will be associated with the same idea. That is true, in particular, where, as in the present case, one of the words in question (‘polar’) can, in some languages, have a clear conceptual meaning which the other (‘polaris’) does not have.

45 The applicant’s argument that the stylised star on the letter ‘a’ of the figurative mark POLARIS will be associated with the pole star, is inconsistent with its assertion that the relevant public does not, in general, know the meaning of the word ‘polaris’ ....

46 In any event, even if the figurative mark POLARIS were associated with the pole star, in the case of an attentive consumer that would not mean that there was a significant conceptual similarity between that mark and the POLAR mark, since the latter word has a different specific meaning in some languages and in other languages no specific meaning".

Posted by: Blog Administrator @ 09.41
Tags: Community trade mark opposition,
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