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General Court consider similarity between two figurative marks of stylised wings

Chris Benson
01/06/2021

In Point Tec Products Electronic GmbH v EUIPO (Case-T-615/19), the General Court has considered the question of conceptual similarity in a case involving two figurative marks of stylised wings.

Background

Applicant's Mark

 

 

Opponent's Mark

The Applicant, Point Tec Products Electronic GmbH, filed an EU designation of the International mark on the mark above covering goods in classes 3, 14 and 25 (perfumery, watches and clothing/headgear/footwear respectively).  The Opponent, Compagnie des montres Longines, Francillon, S.A. opposed based on the above EU registered trade mark in Class 14 (watches).

The opposition was based on a likelihood of confusion under Article 8(1)(b) and that the Opponent's Mark had a reputation under Article 8(5).

The Opposition Division rejected the opposition finding there was no likelihood of confusion (notwithstanding the goods were identical) and that the Opponent's Mark did not have a reputation. The Board of Appeal overturned the decision concluding there was a likelihood of confusion. As both signs were logos, a phonetic comparison was not possible.  There was a low degree of similarity visually and conceptually but the signs were at least similar to an average degree whether they were perceived as stylized wings or air force badges.

General Court decision

In its appeal to the General Court, the Applicant argued the differences between the signs were sufficient to avoid confusion.  It stated that the stripes did not represent wings.  It argued that stylised wings of different types and shapes have been used with many goods and services, in particular with watches in Class 14 and therefore such a pattern could not be monopolised by the Opponent.  It also submitted previous decisions of the Board of Appeal and judgments of the General Court which it claimed supported its position.

The General Court found there was a low degree of visual similarity between the signs and that it was difficult not to see the six elements of the Applicant's Mark consisting of black outlines except as extended wings. It said the two signs have in common as a central element a shape divided by intersecting lines.

It also agreed with the Board of Appeal that conceptually the signs contained what was regarded as a highly stylised depiction of extended wings which may be regarded as a depiction of bird wings or could be perceived as a type of army aviator or air force badge.  It did not agree with the Applicant that the earlier mark had to have a particular distinctive character in order to establish conceptual similarity.  In relation to the argument that stylised wings have long been used in connection with watches, it stated that the question here was not whether to grant a monopoly to the Opponent but to assess similarity and a likelihood of confusion between the signs.  It therefore agreed the signs were conceptually similar to an average degree.

As expected, the General Court stated that previous decisions in Member States are only factors to be taken into consideration by the Office, without being given decisive weight.  It distinguished the cases relied on by the Applicant.

Given the low degree of similarity visually and the average degree of similarity conceptually, the General Court agreed that there was a likelihood of confusion and rejected the application.

Comment

As has been shown in other cases, relying on earlier decisions of Member States is unlikely to be taken into account by the EUIPO.  For purely figurative marks, phonetic comparisons are irrelevant. Low to average degrees of visual and conceptual similarity may be sufficient to succeed in establishing confusion.
 

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