Case T‑824/16
Kiosked Oy Ab
v
European Union Intellectual Property Office
(EU trade mark — Opposition proceedings — International registration designating the European Union — Figurative mark K — Earlier Benelux figurative mark K — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))
Summary — Judgment of the General Court (Fifth Chamber), 13 March 2018
1. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Criteria for assessment
(Council Regulation No 207/2009, Art. 8(1)(b))
2. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Determination of the relevant public — Attention level of the public
(Council Regulation No 207/2009, Art. 8(1)(b))
3. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Figurative marks K
(Council Regulation No 207/2009, Art. 8(1)(b))
4. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment
(Council Regulation No 207/2009, Art. 8(1)(b))
5. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Identical nature of the sign and the mark — Meaning — Sign reproducing, without any modification or addition, all the elements constituting the trade mark or, viewed as a whole, containing differences so insignificant that they may go unnoticed by an average consumer
(Council Regulation No 207/2009, Art. 8(1)(b))
6. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Conceptual identity between signs referring to the same letter of the alphabet
(Council Regulation No 207/2009, Art. 8(1)(b))
7. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Weak distinctive character of the earlier mark — Effect
(Council Regulation No 207/2009, Art. 8(1)(b))
1. See the text of the decision.
(see paras 31, 32, 69)
2. See the text of the decision.
(see paras 33, 72, 73)
3. See the text of the decision.
(see paras 43, 49, 67, 70, 71, 74, 82-85)
4. See the text of the decision.
(see paras 50, 80)
5. Two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects.
In contrast to the concept of similarity, the concept of identity implies, in principle, that the two elements compared should be the same in all respects. However, since, first, the perception of identity must be assessed with regard to an average, reasonably well informed and reasonably observant and circumspect consumer and, secondly, the perception of identity is not the result of a direct comparison of all the characteristics of the elements compared, insignificant differences which may go unnoticed by an average consumer do not mean that the signs under comparison are not identical. Consequently, a sign is identical to a trade mark where it reproduces, without any modification or addition, all the elements constituting the trade mark or where, viewed as a whole, it contains differences so insignificant that they may go unnoticed by an average consumer.
(see paras 56, 57)
6. As regards the conceptual comparison of two marks which consist of the same single letter, it must be stated that the graphic representation of a letter is likely to evoke a very distinct entity in the mind of the relevant public, namely a particular phoneme. In that sense, a letter refers to a concept. It follows that there may be conceptual identity between signs where those signs refer to the same letter of the alphabet.
(see paras 66, 67)
7. See the text of the decision.
(see para. 79)