Oppositie tegen beeldmerk wolf terecht afgewezen
Gerecht EU 9 november 2022, IEF 21087, IEFbe 3573; ECLI:EU:T:2022:697 (Société Elmar Wolf tegen EUIPO) Op 25 juli 2016 heeft Fuxtec GmbH, een Duitse verkoper van tuingereedschap, een Unie-beeldmerk geregistreerd. Het merk is een afbeelding van de kop van een wolf. Société Elmar Wolf heeft op 17 augustus 2017 tegen deze registratie oppositie ingesteld omdat haar merk ook de kop van een hond/wolf afbeeldt. De oppositie is door de kamer van beroep van het EUIPO afgewezen. Het Gerecht stelt dat de kamer van beroep terecht heeft geoordeeld dat de betrokken tekens visueel slechts in geringe mate overeenstemmen. Ook heeft de kamer van beroep terecht geoordeeld dat de tekens niet conceptueel overeenstemmen. Tot slot is er geen sprake van verwarringsgevaar. Het beroep van Société Elmar Wolf wordt verworpen.
40. The arguments put forward by the applicant are not capable of calling those assessments into question. The argument regarding the many similarities between the two signs at issue cannot, in the light of the considerations set out in paragraph 39 above, be accepted, since it is based on a separate comparison of each of the central, upper and lower parts of the marks at issue and not on the overall impression created by those signs. Furthermore, the argument that the signs at issue will be identified spontaneously as the stylised and simplified head of a canine can also not succeed. As has been analysed in paragraphs 37 and 38 above, the shape represented by the contested sign is abstract and therefore unlikely to be associated with the head of an animal and even less with the head of a canine, whereas the representation of a silhouette in the earlier marks is much more naturalistic and detailed, with the result that it creates the overall impression of the head of a canine with a menacing expression.
41. In view of the foregoing, the claim alleging that the Board of Appeal erred in finding that the signs at issue were visually similar only at most to a low degree must be rejected.
46. However, it is apparent from the analysis of the visual similarity of the signs at issue which has already been carried out that the earlier signs evoke the concept of the head of a canine, whereas the sign applied for is abstract and is not therefore liable to be associated with such a concept by the relevant public, even though it may evoke the head of an animal in the minds of a non-negligible part of that public. It is clear from the foregoing that the signs at issue do not, for the relevant public, convey an idea in common.
47. It follows that the claim alleging that the Board of Appeal erred in finding that the signs at issue were not conceptually similar must be rejected.
60. First, it must be borne in mind that the Board of Appeal relied on the assumption that all the goods and services covered by the earlier marks were identical to the goods and services covered by the mark applied for.
61. Secondly, as regards the relevant public, it must be held, as stated in paragraph 23 above and as the Board of Appeal found, that that public consists (i) of the professional public, the level of attention of which is high, and (ii) of the general public, the level of attention of which may vary from average to high.
62. Thirdly, as has been stated in paragraphs 41 and 46 above, the marks at issue can be held to be (i) visually similar at most to a low degree and (ii) conceptually dissimilar. Lastly, the marks at issue cannot be compared phonetically since they consist of a single figurative element without any text.
63. It follows from the foregoing that the Board of Appeal was right in finding, in paragraph 37 of the contested decision, that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009, even with regard to identical goods, even assuming a normal level of attention on the part of the relevant public and even if the contested mark were to be perceived as an animal’s head.