Case T-596/21: The General Court upheld a finding that there was no likelihood of confusion between the two signs pictured (an International Registration designating the EU and 10 earlier marks) for identical goods and services. The Board had found there was, at most, a low degree of visual similarity and no phonetic similarity and that the earlier marks had no more than a normal degree of distinctiveness.
In a previous, separate case involving the earlier marks, the Court had found that they had a highly distinctive character, both inherently and acquired through use. But the Court said "the Board of Appeal is not bound by a judgment of the Court which was delivered in the context of different proceedings, which concerned different marks and goods and services which were, in part, different".
It concluded: "The Board of Appeal was therefore entitled to find, without making any error, in the context of its analysis and in the light of the evidence provided by the parties, that the earlier marks had only a normal degree of inherent distinctiveness, since the applicant has not adduced any evidence to call that analysis into question. Furthermore, the applicant has also not provided any evidence as regards the possible recognition of the earlier marks on the market, which would tend to show that those marks are highly distinctive."
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Case T-610/21: The Court overturned the Board of Appeal, finding no likelihood of confusion between these two signs for goods in class 3. Critically, it disagreed that the marks were visually similar to an average degree, saying: "whilst it is true that the marks at issue resemble each other, inasmuch as they include a large letter 'k', they are nevertheless distinguishable, first, by the different graphics and stylisation of that letter and, second, by the visible presence of the word elements 'k water' only in the mark applied for, as well as by the different colours of their word elements. Accordingly, the visual similarity between those marks must be regarded as low. The fact that they also include a black, box-shaped background, which is purely decorative, does not alter that finding." It also found that the marks at issue cannot be considered to be phonetically similar only to a low degree.
The Court noted that "a finding that amounts to recognising a likelihood of confusion between two signs, one consisting primarily of a highly stylised, single capital letter and the other consisting of the same capital letter but written in a very different stylisation and combined with other word elements, would de facto amount to granting a monopoly over one capital letter of the alphabet for a specific range of goods."
Case T-639/21: In the latest decision in a long-running dispute, the Court upheld a finding of no likelihood of confusion between figurative marks for CCB and CB (pictured), following a CJEU judgment in June 2020. It said the Board of Appeal was entitled to find the signs were visually dissimilar, as "the earlier marks consist of a figurative element composed of two rounded shapes, whereas the mark applied for consists of a word element, ‘ccb’, and a figurative element decorating the latter", and it was not possible to carry out a phonetic or conceptual comparison.
Case T-151/22: An International Registration designating the EU for the word mark GENERAL PIPE CLEANERS was correctly found to be descriptive for goods in classes 7 and 9, said the Court: "The meaning of the sign applied for was neither allusive nor suggestive since there was a direct and specific relationship between the expression ‘general pipe cleaners’ and the kind, type and intended purpose of the goods at issue, which were devices for cleaning drains, parts of those devices or goods whose primary purpose was to be used in that context."
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Case T-512/21: In invalidation proceedings concerning genuine use of an EUTM (pictured top) registered for goods in class 35, the Court upheld a finding that the use of the mark in the form pictured below (also registered as an EUTM) did not alter its distinctive character. The Court said, "the differences between the contested mark and the sign used are based essentially on elements which are not the dominant or most distinctive elements" and "the differences between the two signs at issue are not such as to alter the distinctive character of the contested mark as a whole". Accordingly, "the sign used in trade does not create an overall impression which is significantly different from that of the contested mark".
All pictures taken from the Court judgments
Issue 143
You can now download the paper that won this year’s Lewis Gaze Memorial Award from the MARQUES website
Annual Conference delegates can still download the Resource Pack, which includes photos, presentations and videos of the Conference sessions, from the MARQUES website
On 17 November the EU Court of Justice handed down judgments in five cases concerning the interpretation of legislation including the Trade Mark Directive and Enforcement Directive
EUIPO hosted the annual meetings of the five biggest trade mark and design offices at the end of October
Developments at EUIPO include new offices joining the IP Register in Blockchain, MBBC meetings and further extension of time limits for parties in Ukraine
WIPO has published the World Intellectual Property Indicators (WIPI) report, as well as a traditional knowledge language pack and Green Technology Book. Plus: Paraguay has joined two IP treaties
Gabriele Engels, Co-Vice-Chair of the MARQUES Cyberspace Team, provides an update on the EU Digital Services Act
Keep up to date with all the latest IP news and analysis on the MARQUES blogs and social media!
MARQUES was very sorry to hear of the sudden and unexpected death of Björn Bahlmann on 4 November