In case T-379/08, the General Court had to review the existence of likelihood of confusion between the two following figurative marks:

Mustang – contested CTM            v            Decathlon -earlier IRs

The goods in classes 3, 18 and 25 are identical except for the ‘deodorant air fresheners’ which have an average degree of similarity with ‘personal use deodorants’ (perfumes) and ‘essential oils’.

The Court confirmed that the Board of Appeal had rightly found that the earlier marks have a low distinctive character since they don’t express a clear concept nor contain an original element. The wavy line might or might not represent a letter such as an “m” , “w” or “n”. Further, the signs are visually highly similar and share strikingly similar characteristics: a thick irregular horizontal line with three crests, slightly inclined to the right. Even though the earlier mark is contained within a black rectangle, this is secondary to the visual importance because it is a common graphic process to frame the internal figurative dominant element.

There is no possible phonetic and conceptual comparison; therefore due to the high visual similarity there is a likelihood of confusion for the average consumer.