13 March 2018 – EU figurative mark based on a letter of the alphabet – Judgement of the Court of Justice of the EU (General Court), case T 824/16

The judgement relates to an action against a decision of the Board of Appeal of EUIPO relating to opposition proceedings concerning an international registration designating the European Union obtained for a figurative sign based on the letter “k”, where the opposition was grounded on four earlier national trade marks (registered with the Benelux Office for Intellectual Property) also based on the letter “k” for identical services.

With regard to the phonetic similarity, the General Court held that, since the relevant public may be led to recognise a letter ‘k’ in the mark applied for and in the earlier national trade mark, those two marks are likely to be pronounced in the same way. Consequently, it must be held that, contrary to what the Board of Appeal pointed out in that regard, the marks at issue are phonetically identical.

With regard to the conceptual similarity of two marks which consist of the same single letter, recalling the case law of the Court of Justice of the EU, the General Court 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.

With regard to the global assessment of the likelihood of confusion, still recalling the case law of the Court of Justice of the EU, the General Court stated that it is true that the level of attention of the relevant public is an element which has to be taken into consideration in assessing whether there is a likelihood of confusion. However, it cannot be accepted that there are cases in which, owing to the level of attention displayed by the relevant public, any likelihood of confusion and therefore any possibility of applying that provision can, a priori, be ruled out.

The fact that the public in question will pay more attention to the identity of the producer or provider of the goods or services which it wishes to purchase does not, however, mean that it will examine the mark before it in the smallest detail or that it will compare it in minute detail to another mark. Even with regard to a public with a high level of attention, the fact remains that the members of the relevant public only rarely have the chance to compare the various marks directly and must therefore rely on their imperfect recollection of them.

The distinctive character of the earlier trade mark is also one of the relevant factors which may be taken into account in the global assessment of the likelihood of confusion. However, even if the degree of inherent distinctive character of an earlier mark were lower than average, such a weak distinctive character would not, in itself, preclude a finding that there is a likelihood of confusion.

In any event, even in a case involving an earlier mark with a weak distinctive character, there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods and services covered.

Full judgement