The Court of First Instance recently ruled on two Community trade mark applications involving the word "focus". They are as follows:

Case T‑357/07, Focus Magazin Verlag GmbH v Office for Harmonisation in the Internal Market, Editorial Planeta, SA. 16 December 2008.

Focus Magazin applied to register the words FOCUS Radio for goods and services in Classes 9, 16, 35, 38, 41 and 42 for a wide variety of computer, data and communication goods and services. Planeta opposed, citing three Spanish registrations of the words FOCUS MILENIUM for goods and services in Classes 9, 16 and 41. The opposition was directed against all the goods and services designated in the application and was based on all the goods and services covered by the earlier marks, Planeta alleging a likelihood of confusion based on similarity of marks and identity/similarity of goods and services. The Opposition Division upheld the opposition in respect of the goods in Classes 9 and 16 and the services in Class 41 (which were identical), and certain services in Classes 38 and 42, which were similar. However, the opposition was rejected in respect of the services in Classes 35 (with the exception of ‘connecting computer services to data networks’), 38 and 42 (with the exception of ‘consultancy in the field of computer hardware’), since those services differed from the services covered by the marks FOCUS MILENIUM.

Focus Magazin appealed to the Fourth Board of Appeal, which annulled the decision of the Opposition Division in part, holding that the opposition could be upheld only in respect of the identical goods and services, since the signs in question were only similar to a low degree. It therefore rejected the opposition as regards the services in Classes 38 and 42. It also found that some of the goods in Class 9 and some of the services in Class 41 were only similar, and that, accordingly, the opposition had to be rejected also in respect of those goods and services. Focus Magazin then appealed further to the Court of First Instance, arguing that the respective marks were dissimilar. The Court dismissed its appeal, holding (inter alis):

"38 ... since the shared element of the trade marks at issue, the word ‘focus’, is placed at the beginning of those marks it creates a degree of visual and aural similarity between them, when each mark is taken as a whole, as the Board of Appeal rightly held ....

39 ... the marks at issue, taken as a whole, had no clear meaning. Hence, there is no conceptual difference to cancel out that visual and aural similarity.

40 Also ... the Board of Appeal did not apply the case-law according to which ‘A’ equals ‘A + B’ or ‘A + B’ equals ‘B’ in order to establish that ‘A + B’ equals ‘A + C’. Indeed, the Board of Appeal expressly excluded, in particular, Case C‑120/04 Medion [2005] ECR I‑8551, concerning opposition between the trade marks THOMSON LIFE and LIFE, and held that ‘A + B’ cannot be seen as an abbreviation or variation of ‘A + C’. It correctly stated that signs had to be compared as to the overall impression they convey, but the relevant public might pay more attention to the identical beginning of those signs".