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General Court: Preferisco (fig) v. I Preferiti
In Judgment T-371/15, the General Court dismissed the appeal in the following opposition (see table below).
The Opposition Division upheld the opposition and rejected the EU trade mark application in its entirety. The Second Board of Appeal of EUIPO partially upheld the appeal, annulling the Opposition Division’s decision as regards only the goods contained in Class 32 in view of the difference between the goods.
As regards the comparison of the signs, first, with regard to the visual aspect, the marks are overall similar, given the common element ‘preferi’, the graphic elements of the mark applied for being decorative and not very distinctive. Second, with regard to the phonetic aspect, irrespective of the different pronunciation rules applicable in different parts of the relevant territory, the pronunciation of the signs at issue coincide in the syllables ‘pre’ and ‘fe’ and in the pronunciation of the letters ‘r’ and ‘i’, appearing identically in both signs in the same position. With regard to the applicant's argument that the Bulgarian-, Lithuanian- and Hungarian-speaking public will pronounce the two marks in completely different ways, no conclusive evidence was put forward whatsoever in that regard. Moreover, it must be noted that the common element ‘preferi’ is pronounced in the same way in those three languages. The applicant’s argument must therefore be rejected. Third, with regard to the conceptual aspect, the earlier mark and the word element of the mark applied for have no meaning for the relevant public and the flag in the mark applied for is capable, if noticed, of creating a slight conceptual difference. In those circumstances, there is a likelihood of confusion.
Preferisco Foods Ltd (Canada) - Applicant
Piccardo & Savore’ Srl (Italy)
I PREFERITI (earlier EUTM)
Class 29: ‘Food products, namely, cooking oil, edible oil, salad oil, vegetable oil, potato-based gnocchi, tomato paste, processed pimentos, processed olives, dried figs, processed tomatoes, sun dried tomatoes, pickled vegetables, processed vegetables, processed artichokes, processed bell peppers and hot peppers, processed mushrooms, processed beans, soups, cheeses, fish for food purposes, processed anchovies, packaged deli meats; processed vegetables; antipasto comprised of processed olives, processed peppers, processed tomatoes; processed pickles, processed artichoke hearts; processed, fresh, deli or preserved meat, fish and poultry; processed and dried fruit and nuts, jam and fruit spreads; vegetable-based spreads’;
– Class 30: ‘Food products, namely vinegar, egg noodles, pasta, lasagne, flour-based gnocchi, pasta sauces, tomato sauces, spices, capers, rice, cornmeal, biscuits, bread sticks; baking products, namely Italian specialty yeasts; food flavourings; confectioneries, namely candies and chocolates, biscuits, vanilla beans, coffee beans; mustard; vegetable sauces; rice mixtures, namely rice and seasoning mix combined in unitary packages; pesto; salt; condiments, namely pickles, pimentos used as a condiment; non-alcoholic beverages, namely coffee’;
– Class 32: ‘non-alcoholic beverages, namely, fruit nectars, fruit juices and mineral water’.
Class 29: ‘Meat, fish, poultry and game; meat extracts; preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs, milk and milk products; edible fats and oils’;
– Class 30: ‘Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices; ice’;
– Class 32: ‘Alcoholic beverages (except beers)’
Tags: General court, likelihood of confusion, preferisco, i preferiti,
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