Case T-24/08

Weldebräu GmbH & Co. KG

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Community trade mark – Opposition proceedings – Application for a three-dimensional Community trade mark – Shape of a bottle with a helically formed neck – Earlier three-dimensional Community trade mark consisting in the shape of a bottle with a helically formed neck – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

Summary of the Judgment

Community trade mark – Definition and acquisition of the Community 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

(Council Regulation No 40/94, Art. 8(1)(b))

There is, for the average consumer, no likelihood of confusion between the three-dimensional sign consisting of a bottle of cylindrical form with a narrowed, helically formed neck, which bears the inscription ‘snipp’ on the cylindrical part and in respect of which registration as a Community trade mark is sought for goods in Classes 30, 32 and 33 of the Nice Agreement, and the three-dimensional mark consisting of the shape of a bottle with a helically formed neck, which was registered previously as a Community trade mark for identical or very similar goods in Classes 21, 32 and 33 of that Agreement.

Although it is true that the word element, ‘snipp’, of the trade mark applied for, engraved in the same colour as the glass, is difficult to see and, consequently, is not likely to have an effect on the overall impression produced by the trade mark, and although it is evident that the necks of the bottles of the signs at issue are both helically formed and, consequently, can be distinguished from traditional necks, the fact remains that the overall visual impression is of various significant differences between the signs at issue.

First, the earlier sign appears, from the perspective of average consumers who are reasonably well informed and reasonably observant and circumspect, to be longer, slimmer and therefore more delicate than the sign applied for, which has a smaller, thicker and more corpulent silhouette which gives a more bulky impression. In addition, in the case of the sign applied for the shape of the body of the bottle is irregular because of its curvy form, whereas that of the earlier sign is straight. Secondly, the necks, although both helical, have different spirals. Whereas the neck of the earlier sign is thinner and consists of only two helical turns, that of the sign applied for is wider and consists of at least four helical turns.

Since the signs at issue have significant differences and it has not been demonstrated in what way the earlier mark is highly distinctive, the mere fact that the two bottles have a helically formed neck does not lead to the conclusion that there is a likelihood of confusion between the marks at issue, despite the fact that the goods at issue are identical. As regards the tactile impression of the marks at issue, the selling arrangements for the bottles – namely their display as labelled goods in the food aisles of supermarkets or their being ordered in a bar or restaurant – mean that prior to purchase the consumer will concentrate mainly on the word and figurative elements on their labels, such as the trade mark’s name, logo and/or other figurative elements indicating the product’s origin.

(see paras 25-26, 32-33)