[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner. 　　

[background] 　　

In general, two factors should be considered to determine whether there is a risk of confusion between two trademarks: Trademark approximation, And the similarity of its specified goods or services. And judge whether the trademarks constitute similarities, Generally, it should be analyzed from three perspectives: Pronunciation similarity (aural similarity) , Appearance similarity (visual similarity) , And the similarity of meaning (conceptualsimilarity) , That's what we call the triad of evaluation. 　　

In short, The above is familiar to intellectual property professionals, Elements to determine whether there is a risk of confusion between trademarks. But what about trademarks in non-EU official languages? Whether the meaning of specific words should be considered in the judgment, Even in their language system? How to understand "Regulation of the European Council on trademarks of the European Union (The first (EC) 207/2009 No) " (Hereinafter referred to as "Eu trade mark regulation" , Has been "Eu trade mark regulation (The first (EU) 2017/1001 No) " replace——Translator's note) The first 9. 1 (b) prescribed, Eu trademark holders have the right to prohibit others from using a mark which may cause the public to confuse them with their own EU trademark? 　　

In this case, Both of the previous EU trademarks contain Arabic characters and the corresponding Latin pronunciation, Very similar in appearance. however, Compare the Arabic part of the logo, You can see it sounds different and looks different, There are also differences in meaning and pronunciation. Prior EU trademark Prior EU trademark dispute Trademark application Disputed trademark application　　

In addition, The previous EU trademark was designated for use on food goods produced in the Arab region, The relevant public are Muslim consumers with basic knowledge of Arabic. 　　

Whether to consider foreign countries (Non-eu country) Language knowledge and other factors, Can directly confuse the conclusions of the risk assessment, So the Brussels Commercial Court (Court of hearing) Decided to stay the case, And asked the European Court of Justice (Court of Justice) To make a preliminary determination on the following questions: "Eu trade mark regulation" The first 9. 1 (b) Article should be read as, If the public concerned has a basic knowledge of a non-EU official language, To assess whether there is a risk of confusion between an EU trademark using the word and the contested mark, Elements such as meaning and pronunciation should be taken into account? 　　

[conclusion] 　　

After the European Court of Justice examines the facts of the case, adjudication " "Eu trade mark regulation" The first 9. 1 (b) Article shall be understood as, If the main elements of the EU trade mark and the contested mark used on the same or similar goods contain an Arabic word written in both Latin and Arabic characters, The Arabic words used in both look similar, And the public concerned with the EU trademark and the contested mark have basic knowledge of Arabic, So whether there is a risk of confusion between the two, Factors such as the meaning and pronunciation of the corresponding words should be considered" . 　　

The court also noted, If you don't consider the above factors, "The judgment of whether there is a risk of confusion is incomplete, This is because it does not take into account the overall appearance impression of the relevant public towards EU trademarks and contested marks" . 　　

[comment] 　　

"Eu trade mark regulation" Not set up "public (public) " The legal concept of. According to the precedent of the European Court of Justice, Can sum up the closest "public" Definition of concept, That is to say, the relevant public means to know the basic content of goods or services using an EU trademark, Consumers with a reasonable level of attention and caution. In addition, The European Court of Justice also has precedent for discriminating between groups of consumers based on language, This has also been a key factor in assessing the risk of confusion in many cases. 　　

It can be seen that, It cannot be assumed that trademark legislation in assessing the risk of confusion, No consideration shall be given to the meaning or pronunciation of the non-EU official language used in the trademark, Especially in situations like this one, In theory, The relevant public has knowledge of the particular language. 　　

The decision is in line with the economic and social realities of the European Union, That the EU internal market is a single market of consumers from different national and ethnic groups. Only the European or non-European knowledge background of the relevant consumer should be fully considered, To make the most sound judgment. 　　

compile: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights