Editor's note: in "Sociedad Anònima Damm v EUIPO" (Case number: T-859/16) In the case, Eu general court (General Court) judgment, Even if they verbally offer to buy a controversial product in a noisy environment, Differences in pronunciation between trademarks are also sufficient to eliminate the impression that the trademarks are similar to the concerned public. Read the details below! Designated in control 32 A trademark used in a class of goods "KELER" and "KELER18" The right holder of the graphic trademark application "EISKELLER" (Designated in control 32, 33 and 43 Class of goods used) The court held that the graphic portion of the disputed trademark application had certain distinguishing features even if it was a verbal request to purchase goods in a noisy environment, The difference in trademark pronunciation is also sufficient to eliminate the risk of confusion in "Sociedad Anònima Damm v EUIPO" (Case number: T-859/16) In the case, Eu general court (General Court) judgment, Even if they verbally offer to buy a controversial product in a noisy environment, Differences in pronunciation between trademarks are also sufficient to eliminate the impression that the trademarks are similar to the concerned public.

[background] 2013 years 10 month 8 day, The respondent in this case Schlossbrauerei Au, Wilibald Beck Freiherr von Peccoz GmbH & Vo KG The company applied to register an EU graphic trademark (Figure 1) , Specify use in the No 32, 33 and 43 Class of goods and services. (Figure 1) 2014 years 2 month 17 day, Plataforma Continental SL company (Hereinafter referred to as "Plataforma company" ) According to its original Spanish character trademark "KELER" (Registration number: 1918524) and "KELER 18" (Registration number: 405653) , Objection to the above EU trademark application, Both prior trademarks are designated for use in the No 32 commodity. European Union Intellectual Property Office (EUIPO) The dissent Department rejects the dissent application, Plataforma The company filed an appeal. The fifth Appeal Panel of the EU Intellectual Property Office rejected the request for a review, The reason is that there is no risk of confusion between the disputed trademark and the earlier registered trademark. Sociedad Anònima Damm company (Hereinafter referred to as "Damm company" ) After acquiring the trademark rights in the Spanish characters mentioned above, Take the decision to the EU's General Court. The case is made in 2018 years 6 month 19 Judgment of day. [Judgment of the General Court of the European Union] First of all, On the main body of the disputed trademark application and the distinguishing features, The EU General Court reiterated, A thorough assessment of the risk of confusion should be based on the overall impression of the mark. Therefore, Each trademark shall be examined as a whole before being compared, But in certain situations, The public's overall impression of a composite mark may be created by one or more of the elements that make up the mark. For the above reasons, The EU General Court agreed with the following conclusions of the Appeal committee: There are some distinguishing features in the graphic elements of disputed trademark application; and, All the elements that make up a trademark are considered as the basis for considering the overall impression a disputed trademark application gives to the relevant public. secondly, The General Court of the European Union pointed out after the trademark comparison, Trademarks in dispute are pronounced differently, And determine if Damm company-proposed, A verbal request to buy the product in a noisy environment (beer) In the case of, This distinction is also sufficient to rule out the possibility that the relevant members of the public think the two are similar. The General Court of Justice of the European Union holds that trademarks differ in the number of syllables, The pronunciation of the trademark is different, And points out that compared to the rest of the trademark, Consumers generally pay more attention to the beginning of a logo. In addition, The EU General Court agreed with the following conclusions of the Appeal committee: General public and commercial consumers with average or low level of attention based on the overall impression of the trademark, Can distinguish the disputed trademark. Finally, Judgment of the General Court of the European Union, In view of the disputed trademark application and the prior registered trademark overall differences, Determine that there is no risk of confusion between the two.

[comment] The ruling by the European Union's General Court of Justice illustrates, Assessing the risk of confusion relies heavily on subjective judgment. As the EU Intellectual Property Office and the Court of Justice of the European Union have stressed many times, They have discretion in their judgment, Due to the various elements in (appearance, Pronunciation and meaning) The specific gravity of the comparison is different, The risk of confusion assessment may vary from case to case. In some cases, It is not entirely clear to analyze the differences between trademarks from a theoretical perspective, The determining factor in determining whether there is a risk of confusion depends on the evidence presented by the parties. In this case, Above evidence (For example, The Spanish public was asked whether there was confusion over disputed trademarks) May ultimately decide whether it applies "Regulation of the Council of the European Union on Community trademarks (The first 207/2009 No) " The first 8 (1) (b) article, And assess whether there is a risk of confusion accordingly. This article was first published on WTR Daily website, Be subject to World Trademark Review, The first release time is 2018 years 6 month. For more information, Please visit the website www. worldtrademarkreview. com

compile: Liu Dan, Esabarry Legal Counsel source: WTR Daily