TUESDAY, 26 APRIL 2016
Happy dinos in General Court
In Case T‑21/15, the General Court dismissed the appeal in the following opposition case
The Opposition Division partially upheld the opposition and rejected the application for ‘preserved fruits’, ‘compotes’ and ‘milk and other milk products’ in Class 29, and ‘coffee’, ‘cocoa’, ‘artificial coffee’, ‘pastry’, ‘confectionery’, ‘preparations made from cereals’, ‘spices’ and ‘ices’ in Class 30.
The Fifth Board of Appeal of EUIPO annulled the decision of the OD in so far as it had rejected the application for ‘preserved fruits’ and ‘spices’, and dismissed the appeal as to the remainder. It did not endorse the OD's conclusion that ‘spices’ and ‘soya products’, were similar, nor that 'preserved fruits' were similar to '‘milk products’ and ‘ice-cream’.
The comparison of goods by the BOA is laid out in the table below:
According to the BoA, the ‘preserved fruits’ and ‘spices’ covered by the mark applied for and the ‘milk and milk products’ covered by the earlier mark did not bear any similarity.
As regards the comparison of the signs at issue, the representation of dinosaurs in the two marks at issue displayed, despite some differences, a medium degree of visual similarity. Each of those marks resembles a ‘cartoon-like image’ and gives an ‘impression of a friendly and happy creature’ -which is not disputed by the applicant. In addition, the shapes of the body of the dinosaur are nearly identical in the marks and in each of them, the dinosaur is standing, in profile, at fairly similar angles, walking, with one foot on the ground, one leg raised and a slightly raised tail.
The phonetic comparison of the signs at issue is irrelevant, since a figurative mark without verbal elements could not be pronounced. Finally, the marks both evoked a happy dinosaur and were therefore ‘highly similar’ conceptually.
The Board of Appeal concluded from this that the marks at issue must be considered similar overall. As regards the global assessment of the likelihood of confusion, the BoA observed that the verbal element ‘dino’ in the mark applied for only strengthens the concept derived from the figurative element. Consequently, taking account of the similarity of the marks at issue, of some of the goods covered by them, and of the average level of attentiveness of the relevant public, it was likely that that public would believe that those goods came from the same undertaking or from an economically-linked undertaking, so that the mark applied for could not be registered for those same goods.
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