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Happy dinos in General Court
In Case T‑21/15, the General Court dismissed the appeal in the following opposition case
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Franmax UAB- EU TM applicant |
Ehrmann AG Oberschönegg im Allgäu - Opponent |
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-Class 29: ‘Preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs, milk and other milk products’; – Class 30 ‘Coffee, cocoa and artificial coffee; rice, tapioca and sago; flour and preparations made from cereals; bread, pastry and confectionery; ices; sugar, honey, treacle; spices; ice’.
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Class 29: ‘Milk and milk products, especially sour milk products, yoghurt products, butter milk products, cream products, whey products for nutrition purposes, non-alcoholic milk drinks with a predominant milk fraction, curd products, half-fat milk products, desserts consisting essentially of milk and/or cream, also using binding agents based on starch; soya products as foodstuffs, especially substitute products for milk, cheese, butter, yoghurt, curd, pudding, desserts and similar food based on soya (as far as included in this Class); all above goods also containing fruits, vegetables, herbs, spices, cereals, juices or extracts from the above ingredients and flavours, all above-mentioned goods as fresh or cured finished products’; – Class 30: ‘Ice-cream’.
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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:
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EU TM application |
Earlier mark |
Comparison |
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'preserved fruits’ and ‘spices’ |
‘milk and milk products’ |
no similarity |
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'coffee’, ‘cocoa’, ‘artificial coffee’ and ‘preparations made from cereals’ |
milk products’ |
low similarity relevant consumer could think that the same undertaking had responsibility for their manufacture Moreover, they are often consumed together as coffee, cocoa and artificial coffee are generally mixed with milk Also, cereal milk, which falls within the category of ‘preparations made from cereals’, is often consumed as a substitute for cow’s milk by persons who are lactose intolerant. |
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‘compotes’, ‘pastry’ and ‘confectionery’ |
milk products’ |
similar in so far as those goods had an identical purpose, the same method of use, the same distribution channels and target public, and that they were in competition or complementary 'compotes’ could be consumed as desserts or sweet snacks, just as ‘milk products’ could. Moreover, dual-pot yoghurts often have compotes in one pot and yoghurt in the other coming from the same undertaking. 'pastry’ and ‘confectionery’ can be consumed as desserts or sweet snacks, just as ‘milk products’ such as yoghurt or milk pudding can.
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‘milk and milk products’ and ‘ices’ |
milk and milk products’ |
identical |
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.
Posted by: Laetitia Lagarde @ 20.53Tags: General Court, likelihood of confusion, dino, milk, coffee, pastry, ,
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