Latest Cases From The Courtroom Of Starting Fourth Dimension Instance

has works life 3 fresh Community merchandise score cases awaiting him today on the Curia website. They are

* Case T-211/03, Faber Chimica v OHIM, Industrias Quimicas Naber, SA Nabersa. Faber applied to register equally a CTM for chemicals, bleaches, paints etc inwards Classes 1 to 3. Naber opposed, citing its before Castilian registration of for goods inwards the same classes. The Opposition Division held at that spot was no similarity of whatever sort betwixt the ii marks exactly surprisingly the OHIM Fourth Board of Appeal considered that at that spot was both visual together with aural similarity together with that the relevant Castilian consumers would hold upward probable to hold upward confused. The CFI annulled the Board's decision. The marks were non similar and, fifty-fifty if they were, the relevant consumers were sufficiently specialist to hold upward able to tell them apart.

* Case T-273/02, Krüger GmbH & Co. KG v OHIM, Calpis Co. Calpis sought to register CALPICO equally a Community merchandise score for soft drinks; Krüger opposed, citing its before High German registrations of CALYPSO for fruit powders together with non-alcoholic preparations for making fruit drinks. The Opposition Division idea the marks likewise dissimilar for at that spot to hold upward whatever likelihood of confusion. The First Board of Appeal agreed. So likewise did the CFI, which said:

"51 ... inwards its determination dismissing the opposition on the terra firma that at that spot was no likelihood of confusion, the Opposition Division stated:

‘Although identical goods are at number inwards this case, the differences betwixt the signs which are compared suffice to distinguish [the marks] alongside plenty certainty. Admittedly, strict criteria should hold upward applied inwards this representative equally regards the divergence which must be betwixt the marks, inwards especial because the goods compared are staple goods which, equally sense shows, are bought fairly carelessly together with without especial attending beingness paid to the names of the goods.’

52 [T]he Board of Appeal ... stated:

‘23 The goods covered past times each of the marks are everyday goods that consumers mostly purchase equally they instruct past times inwards supermarkets together with shops selling beverages. The cost of those articles is such that they may hold upward described equally low-cost articles. However, given the extensive selection inwards the fruit juices together with beverages sector, the average customer’s attending should non hold upward regarded equally insignificant. Accustomed to an extensive selection of fruit juices together with goods of that kind, such equally powders presented inwards similar packaging, consumers volition pay attending to the packaging of each or volition examine the marks to a greater extent than closely before making a purchase.’

53 Given that the goods designated past times the conflicting marks are staple goods, both the Opposition Division together with the Board of Appeal considered that the aeroplane of attending of the relevant populace was non high. It is truthful that paragraph 23 of the [Board's] determination differs from the Opposition Division’s determination equally regards assessment of the exact aeroplane of attending which the relevant populace may pay to the conflicting marks, on trouble concern human relationship of the effect of extensive selection on attending inwards the fruit juices together with beverages sector. However, spell the Board of Appeal took the persuasion that extensive selection inwards the fruit juices together with beverages sector may Pb the relevant populace to pay especial attending to the conflicting marks, it none the less did non regard that that attending was high.

54 In whatever event, the divergence inwards the assessments inwards the decisions of the ii bodies of OHIM does non imply whatever effect equally regards the absence of similarity betwixt the conflicting signs together with the absence of likelihood of confusion betwixt the marks which were works life past times those bodies. Having regard to the visual, aural together with conceptual differences betwixt the conflicting signs noted inwards paragraphs 38 to 43 above, the average High German consumer volition non attribute the same commercial rootage to the goods designated past times the conflicting marks fifty-fifty if he pays no especial attending to those marks".

* Case T-318/03, Atomic Republic of Austria GmbH v OHIM, Fabricas Agrupadas de Munecase de Onil, SA. FAMO applied to register the words ATOMIC BLITZ equally a Community merchandise score for games, playthings together with sporting articles inwards Class 28. Atomic Republic of Austria opposed, citing a likelihood of confusion alongside its before ATOMIC registrations inwards Austria. The Opposition Division dismissed the opposition on the terra firma that at that spot was no supporting documentation to advise that Atomic Austria's marks, which were registered betwixt 1973 together with 1984, were nevertheless on the register, fifty-fifty though OHIM did non explicitly inquire for this data to hold upward provided together with the opposition was accompanied past times a certification past times Atomic Austria's representative that the marks were nevertheless inwards force. The Second Board of Appeal agreed, exactly the CFI has at i time educate this determination aside. The CFI observed:

"37 The examine of the facts together with evidence submitted to OHIM must hold upward conducted inwards such a fashion equally to abide by the correct to a fair hearing of the parties to the opposition proceedings together with the correct to procedural equity. If an applicant ... doubts the probative value of documents submitted past times the opponent to bear witness the existence of a claimed before right, or fifty-fifty the extent of that right, he may say together with hence inwards the proceedings before OHIM, which is required to regard the relevant observations carefully.

38 However, OHIM cannot avoid conducting a comprehensive assessment of the facts together with documents presented to it past times disputation that it is for the opponent, on his ain initiative, to furnish OHIM alongside supporting evidence inwards the shape of detailed data on the police describe of the Member State inwards which at that spot is protection for the before score on which the opposition is based.

39 Furthermore, ... neither Regulation 40/94 nor Regulation 2868/95 specifies a compulsory shape of evidence to hold upward lodged past times the opponent to bear witness the existence of his before right. ...

40 It follows from this that .. an opponent is gratuitous to pick out the evidence he considers useful to submit to OHIM inwards back upward of his opposition together with ... OHIM is obliged to examine all the evidence submitted to it inwards monastic enjoin to hit upward one's heed whether it does bear witness that the before score was registered or filed, together with cannot turn down out of mitt a especial type of evidence on the footing of the shape it takes".