The General Court has decided that an RCD for a container for sweets was invalid under Article 25(1)(e) Community Design Regulation due to a likelihood of confusion with an earlier 3D IR trade mark covering, inter alia, sweets; this was despite the weak distinctiveness of the IR trade mark. 

Case reference: T-695/15 of 3 October 2017, BMB sp. z o.o. vs EUIPO, link here

The court held as follows:

• while the design showed some differences to the IR trade mark (e.g. visible edges, the label of the contested design, MIK MAKI logo) this did not "overshadow" the impact of the 3D box;
• the court agreed with EUIPO BoA that the goods were "at least " highly similar and the two signs visually similar;
• the level of attention of the relevant (French) public was comparatively low with sweets being a low price and frequent purchase item;
• no phonetic or conceptual comparison was possible;
• the fact that contested design was represented filled with sweets did not constitute a relevant point of visual comparison since the RCD was merely for the box (of the sweets).

Noteworthy are paragraphs 60 and 61 of the decision which also include helpful earlier case law quotes concerning the assessment of a likelihood of confusion between an RCD and a trade mark:

60 A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the signs and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the signs, and vice versa (see, by analogy, judgments of 29 September 1998, Canon, C 39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, Mast-Jägermeister v OHIM — Licorera Zacapaneca (VENADO with frame and others), T 81/03, T 82/03 and T 103/03, EU:T:2006:397, paragraph 74).

61 … likelihood of confusion must be assessed globally, an assessment which depends on several factors relevant to the circumstances of the case, and not only the shape of the packaging. Furthermore, contrary to the applicant’s claim, the perception of the signs by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion (judgments of 11 November 1997, SABEL, C 251/95, EU:C:1997:528, paragraph 23, and of 22 June 1999, Lloyd Schuhfabrik Meyer, C 342/97, EU:C:1999:323, paragraph 25).