The Court considers that the elements common to the two marks at issue, seen as a whole, produce an overall visual impression of great similarity, since the La Española mark reproduces very precisely the essence of the message and the visual impression given by the Carbonell mark: the woman dressed in traditional clothes, seated in a certain manner, close to an olive branch with an olive grove in the background, the overall image consisting of an almost identical arrangement of spaces, colours, places for brand names and style of lettering.

According to Community case-law, not all the constituent elements of a mark bear the same value or importance. Consequently, the fact that the Court of First Instance attributed a dominant character to the figurative element, enabling it to conclude that there existed a likelihood of confusion between the marks at issue, whilst also taking account of the word element, does not infringe any of the provisions of Community trade mark law, since it did not in any way deviate from the rules laid down by law and by case-law governing the assessment of such a likelihood.

In other words, whilst considering the figurative element of those marks as a dominant element in relation to the other elements of which they are comprised, the Court of First Instance did not fail to take the word element into account. On the contrary, it is precisely in the context of the assessment of that element that the Court of First Instance described it essentially as negligible, on the ground, in particular, that the differences between the word signs of the marks at issue do not invalidate the conclusion it reached after the comparative examination of those marks from the visual point of view.

The CFI made no error in law in finding a likelihood of confusion under the circumstances. Additionally, the CFI was right to note that the level of consumer attention varies according to the goods and services at issue:

In the light of those principles, the Court of First Instance held in particular, at paragraphs 108 and 109 of the judgment under that appeal, that olive oil is a consumer product which is very common in Spain, that it is most commonly purchased in supermarkets or establishments where goods are arranged on shelves and that the consumer is guided more by the visual impact of the mark he is looking for.

The Court of First Instance was therefore right to conclude from this, at paragraphs 109 and 110 of the judgment under appeal, that in those circumstances the figurative element of the marks at issue acquires greater importance, which increases the likelihood of confusion between them, and the differences between the signs at issue are more difficult to distinguish since, as the Court of Justice has moreover had occasion to observe (see, to that effect, OHIM v Shaker, paragraph 35, and Nestlé v OHIM, paragraph 34 and the case-law cited), the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details.