In Case T-333/11, the General Court was faced with round 2 of an opposition between the following marks

In 2007, the Opposition Division had upheld the opposition. The OD decision was cancelled by the OHIM 4^th Board of appeal (BoA) finding there was no likelihood of confusion (LOC).

In Judgment Star Foods I (T- 492/08) of 11 May 2010, the General Court had upheld the appeal, sending the parties back before OHIM, holding that the contested CTM and the earlier word mark shared some visual and aural similarity and were strongly similar from a conceptual point of view,

By decision of 15 April 2011, the 4^th Board of Appeal stood by its original findings and held that even for similar or identical goods, except for ‘beers’ in Class 32, there was no likelihood of confusion. In particular, it held that from a conceptual point of view, the coincidence in the meaning between the terms ‘food’ and ‘snack’, could not lead to a confusion, since the consumer could not attribute a common commercial origin to these generic words.

The Opponent Nicolas Wessang appealed claiming that the second BoA decision was contrary to Star Foods I on two grounds.

Firstly, the General Court held that in its previous judgments it had only compared the signs but had not carried out the global assessment of likelihood of confusion, which is why it remanded the parties before OHIM. Thus, it dismissed the first ground by stating that the Board had not erred by finding an absence of LOC.

However, the BoA did err by holding that the signs were not highly conceptual similar because composed of the generic terms. The BoA was bound by the holding in Star Foods I that the marks are globally similar, including from a conceptual point of view.

Thus the GC cancelled the contested decision and upheld the opposition, except for the dissimilar goods ‘beers’.