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General Court: Kristal (fig) v. Modas Cristal/ Home Cristal (fig)
In Judgment T-345/15, the General Court upheld the following decision to dismiss an opposition:
Zorlu Tekstil Ürünleri Pazarlama Anonim Sirketi
Modas Cristal, SL
Earlier Spanish marks:
- Class 24: 'Fabrics for textile use; Nonwoven textiles; tissue fiber glass textile use; fabric impervious to gases for aeronautical balloons; fabric of imitation animal skins; lining fabrics; buckram; filtering materials (textiles); curtains; shower curtains of textile or plastic; linens;table mats (not of paper); napkins of textile; bedspreads; sheets; pillowcases ; cushion covers and covers for quilts, furniture coverings of textile, towels (textiles), prayer rugs of textile, paper blankets, quilts, blankets; bath linen (except clothing); towels of textile; wall hangings of textile; handkerchiefs (textile); tissues for removing textile; pennants (not of paper), cloth labels ";
- Class 26: "Lace and embroidery, lace for border, festoons, ribbons; buttons for clothing, hooks and eyes, hoops, zippers; belt buckles and shoe buckles, rivets, bands for sleeves, pins; shoulder pads for clothing; needles, pins, knitting needles, crochet hooks, embroidery needle cases, sewing needles; artificial flowers, artificial garlands, artificial fruits; hair nets, hair bands, barrettes (hair slides), non-electric curlers, hair waving pins; false hair, tresses of hair, false mustaches, false beards; numerals or letters for marking linen ";
- Class 35: 'Retail Services, rally, for others, of a variety of goods, namely fabrics for textile use, non-woven textiles, fabrics for textile use glass fibers, fabrics tight gas for balloons, fabrics of imitation animal skins, linings (textile), buckram, filtering materials (textile), curtains, shower curtains of textile or plastic, household linen, table cloths (not of paper), napkins textile, bed covers, sheets (textile), pillowcases, cushion covers and quilts, textile coatings of furniture, cloth napkins, prayer rugs of textile, paper bedspreads, quilts , blankets, bath linen (except clothing), towels of textile, wall hangings of textile, handkerchiefs of textile, tissues for removing textile, flags (not of paper), labels (cloth) lace and embroidery, lace for border, festoons, ribbons, buttons for clothes, hook and eyes, hoops, zippers, belt buckles and shoes, rivets, bands for holding sleeves, laces, shoulder pads for clothing, needles, pins , knitting needles, crochet hooks, embroidery needle cases, sewing needles, artificial flowers, artificial garlands, artificial fruits, hair nets, hair bands, hair clips, non-electric curlers, pins hair waving, hair hairpieces, hair braids, false mustaches, false beards, numerals or letters for marking linen, enabling customers to view and purchase those goods in shops of wholesale and retail, electronically and in catalogs . "
Class 35 and corresponding to the following description: "Award Services franchises on aid to the operation of manufacturing companies of apparel and related accessories, sales representation services, import and export, market research services, service public relations, sales promotion services for third parties, advertising services and retail services in commercial establishments and through global networks of manufacturing apparel and accessories thereto, as well as lingerie items, articles for the home and imitation jewelery ";
Class 24 and designating the fabrics and textile goods not included in other classes; bed linen and table,
The EUIPO held that the use of the earlier word mark had not been established. The Opponent produced the following documents to establish genuine use
- The sworn statement of Jose Reyes Rivero, director of the applicant;
- 27 bills to suppliers, established on behalf of Modas Cristal SL;
- 16 receipts for taxes levied on economic activities (hereinafter "IAE");
- 10 invoices for advertising services established in the name of the applicant;
- Copies of the Internet page of the applicant.
The products sold in the bills were: shirts, pants and dresses for women, women's groups and blouses, duvets, towels, ironing board covers, cushions, tablecloths and table oilcloth covers -beds and pillows. Nevertheless, the earlier word mark covered services in Class 35 which are not covered by the invoices and, the goods covered only a fraction of products such as clothing, items of lingerie and homeware. Thus, the invoices did not prove that the applicant provided retail sales services under the earlier word mark.
Secondly, there is no likelihood of confusion in the mind of public between the earlier figurative mark and the contested mark. Although the verbal elements constitute an important aspect of these marks, the representation of various shapes and colors certainly played a key role in the visual perception of those marks. The earlier figurative mark is composed prominently (due to its large size and its red color) by the English word "home" in lowercase and in a standard typography, where the letter "o" stands out particularly in the form of a large red circle containing the silhouette of a house, followed by a small circle of size much smaller. The term "crystal" in capital letters in green, appears second, under the letter "e" in a stylized typography. The mark consists of the word "kristal" written in capital letters in a standard typography with white characters. A small white star is shown above the capital letter "I". Everything is included in an oval on a dark pink background, to which is added in its top and bottom, a line of light pink color giving relief to the oval. Furthermore, according to the Board of Appeal, even assuming that the Spanish public understands the term "home" ( "casa" in Spanish, or "house" in French), the latter being considered a basic word and one in English common usage, it is indisputable that despite its weak distinctive character it captures the visual attention of the consumer who observes the earlier mark.
Moreover, as rightly emphasized by the EUIPO, products included in class 24 include, in general, fabrics and textile products and these are products sold in stores where consumers choose the products visually, since their purchase requires a preliminary visual examination more or less detailed product and brand to assess closely the quality of the material, texture, cutting, patterns, etc. Therefore, when purchasing the relevant public perceives the mark visually which means products, so that the visual aspect is more important than the phonetic aspect in the overall assessment of likelihood of confusion. Thus the Board of Appeal concluded correctly that there was no likelihood of confusion within the meaning of Article 8 paragraph 1 b) of CTMR.Posted by: Laetitia Lagarde @ 13.07
Tags: General court, likelihood of confusion, kristal,
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