In Case T-382/12, the General Court had to review the following op position

Both the Opposition Division and Board of Appeal found that the goods at issue were complementary to each other and were similar to an average degree. Furthermore, the marks are visually highly similar, phonetically identical and conceptually, the comparison of the signs is neutral. Lastly, it is likely that the public would confuse the commercial origin of the goods in question when labelled with the marks at issue.

The Polish applicant appealed to the GC claiming that the Board did not examine the marks on the basis of ‘global assessment’ or ‘overall impression’ criteria nor drew the correct conclusions with regard to the level of attention of the relevant public. Furthermore, it submitted that the goods at issue are not similar.

As a preliminary observation, the Court’s dismissed the Polish applicant’s claim that its CTM should benefit from the priority of identical Polish trademark, registered before the opponent’s earlier Portuguese mark. According to Article 34 (1) of CTMR, the proprietor of an earlier mark may claim for the CTM the seniority of the earlier trade mark in respect of the Member State in which it is registered, thus in this case in Poland only.

As regards the relevant public, Kampol had claimed that Class 10 goods ‘ for medical purposes’ means that the public consists of consumers who have health problems, for example, allergies, problems with their spinal column or neurological disorders. However, the Court dismissed it stating that those goods are not exclusively purchased by persons who have health problems, but also by consumers who simply seek additional comfort when sitting or sleeping. Thus all the goods are aimed at the general consumer.

Regarding the comparison of the goods, the Court confirmed that the BoA was right to conclude that the goods are similar to an average degree since there is an overlap in the distribution channels and they are closely connected in the sense that one is indispensable or important for the use of the other.

Concerning the comparison of the signs, “the ellipse and the golden rectangle, in spite of their ornamental nature, have a certain impact on the overall impression created by that mark. The crown is also not a negligible element. Furthermore, it must be pointed out that the font used in the mark applied for also has a certain impact on the overall impression created by that mark, in particular because the initial capital letter ‘N’ is striking and much larger than the other letters (para.72)”

Having regard to the presence of the figurative elements which are not negligible in the overall impression, the BOA erred by finding a high degree of similarity when it’s only average. However, the Court rejected the applicant’s claim since the BoA did examine the marks according to the ‘global assessment/overall impression’ criteria.

This slight error in the visual comparison, along with the finding that the signs are phonetically identical and conceptually neutral (Nobel does not have any meaning in Portuguese) does not change the ultimate conclusion. For the average consumer who will easily refer to the goods by cutting the name of the mark rather than describing the figurative elements, there is likelihood of confusion according to Article 8 (1) b) CTMR.