Today the Court of First Instance of the European Commnities (CFI) ruled in the Community trade mark appeal in Case T‑413/07, Bayern Innovativ – Bayerische Gesellschaft für Innovation und Wissenstransfer mbH, v Office for Harmonisation in the Internal Market Life Sciences Partners Perstock NV. Bayer applied to register the figurative mark on the right in Classes 16, 35, 36, 41 and 42; Perstock opposed, citing its earlier CTM (below, left) for services in Classes 35 and 36. The Opposition upheld the opposition in relation to the services in Classes 35 and 36, which were identical to Bayer's, since the marks were similar and there was a likelihood of confusion between them. The Board of Appeal dismissed Bayer's appeal, so Bayer appealed further to the CFI.

The CFI dismissed the appeal. It considered that the Board of Appeal was correct in its finding that the marks at issue had a low degree of visual similarity, which was confined to similarity of the word elements and the helicoidal shape resembling the DNA chain, and that phonetically they were very similar. The marks were also conceptually similar, both because of their word elements and because of some of their figurative elements. The CFI added at paragraph 57 that,

" ... although Article 12(b) of Regulation No 40/94 – according to which the right conferred by a Community mark does not entitle the proprietor to prohibit a third party from using ‘indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of the goods or of rendering of the service, or other characteristics of the goods or service’ – expressly provides for a derogation from the exclusive rights of the mark where the protected mark is used in a descriptive manner, it is clear from the foregoing that no such descriptive use is being made in the present case".