In Case T-505/11 (25 June) Dialcos SpA applied to register the "slightly figurative" Community trade mark DIALDI for goods in Classes 29 and 30, including predominantly gluten free foods. Aldi GmbH & Co. KG opposed on the basis of their earlier CTM ALDI registered (in the OHIM tradition) for all the goods in the headings for those same classes.
The Opposition Division found that, notwithstanding that the goods were identical, there were sufficient differences between the mark and sign that there was no likelihood of confusion. The earlier mark could perhaps be considered highly distinctive but that makes no difference to the analysis (though one might argue that if the opponent's mark were highly distinctive, or otherwise easily recognised by consumers, the junior sign would not have to be as different as would be the case if there were less consumer recognition of the senior one - consumers would be less likely to be confused if they knew and recognised the senior mark). The Board of Appeal upheld that decision.
The General Court considered that the Board of Appeal had been correct to consider that the goods were intended for all consumers, notwithstanding that some of them were intended for a particular group. The goods are not hazardous, like pharmaceuticals, such that a higher level of attention might be expected from consumers. But the General Court still upheld the appeal.
It took the view that (contrary to the Board's view) you cannot assume that the relevant public will see the DIAL part of the applicant's sign as a separate element from the two final letters, which if they did would make the signs quite different: the public will not necessarily appreciate the "split" nature of the sign. The visual and aural differences did not counterbalance or outweigh the similarities. The Court therefore sent the case back to the Board of Appeal.
The Opposition Division found that, notwithstanding that the goods were identical, there were sufficient differences between the mark and sign that there was no likelihood of confusion. The earlier mark could perhaps be considered highly distinctive but that makes no difference to the analysis (though one might argue that if the opponent's mark were highly distinctive, or otherwise easily recognised by consumers, the junior sign would not have to be as different as would be the case if there were less consumer recognition of the senior one - consumers would be less likely to be confused if they knew and recognised the senior mark). The Board of Appeal upheld that decision.
The General Court considered that the Board of Appeal had been correct to consider that the goods were intended for all consumers, notwithstanding that some of them were intended for a particular group. The goods are not hazardous, like pharmaceuticals, such that a higher level of attention might be expected from consumers. But the General Court still upheld the appeal.
It took the view that (contrary to the Board's view) you cannot assume that the relevant public will see the DIAL part of the applicant's sign as a separate element from the two final letters, which if they did would make the signs quite different: the public will not necessarily appreciate the "split" nature of the sign. The visual and aural differences did not counterbalance or outweigh the similarities. The Court therefore sent the case back to the Board of Appeal.
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