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General Court: AquaPerfect v WaterPerfect
In case T-123/14, the General Court annulled the decision of the 4th Board of Appeal concerning the following opposition proceedings
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Arçelik A.Ş. (Turkey) Contested CTM |
BSH Bosch und Siemens Hausgeräte GmbH (Germany)- eARLIER ctm |
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AquaPerfect |
waterPerfect |
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Class 7 ‘Electric motors (other than those for land transportation vehicles); pressured air producers, compressors; pumps other than machine or motor parts, namely hydrophores, water pumps (electro pumps, motor pumps), pumps for heating installations; pumps as machine or motor parts (liquid and gas pumps); electric apparatus used in the kitchen for chopping, grinding, crushing, mixing and crumbling, namely mixers, blenders, kitchen robots, electric knives, meat-grinding machines, garbage disposal machines; dishwashers, washing machines and dryers, electrical or motor-operated floor polishing machines; electric vacuum cleaners and electric carpet washing machines and their bags, pipes and parts thereof |
Class7 – ‘Electrical household and kitchen machines and apparatus (included in Class 7), in particular electrical kitchen machines and apparatus including grinders/crushers, mixing and kneading devices, fruit pressing machines, de-juicers, juice centrifuges, grinding machines, cutting devices, electrically powered tools, tin openers, knife sharpening devices and appliances and devices for making beverages and/or food, pumps for dispensing chilled beverages for use in combination with devices for chilling beverages; electrical waste disposers, namely waste grinders and waste compacting machines; dishwashers; electric machines and devices for cleaning laundry and clothing (included in Class 7), including washing machines, spin dryers; ironing presses, ironing machines, included in Class 7; electric household cleaning equipment, including electric window cleaning equipment, electric shoe polishers and vacuum cleaners, wet and dry vacuuming apparatus; parts for all the aforesaid goods included in Class 7, in particular flexible tubes, pipes, dust filters, dust filter bags, all for vacuum cleaners |
The BoA had rejected the opposition : even though the goods in question are partly similar and partly identical, there is no likelihood of confusion between the signs at issue, owing to the low distinctive character of the earlier mark, and the fact that the only element the signs had in common was the weakly distinctive part of the earlier mark, namely the laudatory element ‘perfect’, as well as due to the low degree of visual and phonetic similarity of the signs.
While endorsing the assessment of the comparison of the goods, the General Court found that contrary to what the Board of Appeal held, the signs at issue do have some conceptual similarity.
That finding was not affected by OHIM’s argument that the element ‘perfect’, is devoid of distinctive character or has, at most, a weak distinctive character.
While that element may indeed be considered to have a weak distinctive character, owing to the laudatory character it will be attributed by the relevant public, the fact remains that none of the other elements making up the same signs can be considered to have a greater distinctive character or be dominant. The elements ‘aqua’ and ‘water’ also have a weak distinctive character owing to the fact that they will be perceived by the relevant public as meaning ‘water’ and that the goods covered all involve, in one way or another, water. Accordingly, the fact that the element ‘perfect’ of the signs in question has a weak distinctive character, and that it is positioned at the end of the signs while their dissimilar elements are at the beginning, has no consequence on the overall impression of the signs at issue.
Therefore, based on an overall impression, the signs at issue are similar to an average degree.
Consequently, in the light of the identity or the similarity of the goods, the average similarity, particularly at the visual and phonetic level of the signs, and the normal level of attention of a part of the relevant public, the Board of Appeal was incorrect to find that there was no likelihood of confusion between the mark applied for and the earlier mark.
Posted by: Laetitia Lagarde @ 18.20Tags: General court, likelihood of confusion, aquaperfect, waterperfect,
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