The General Court has upheld a Board of Appeal decision that a
figurative mark representing a dinosaur was similar to an earlier
dinosaur mark, and that there was a likelihood of confusion between
Franmax UAB applied to register the mark (represented above
left) in relation to goods in Classes 29 and 30. Ehrmann AG
Oberschonegg opposed on the basis of its earlier mark, (above
right) which also covered goods in Classes 29 and 30.
The Opposition Division had partially upheld the opposition and
rejected the application for preserved fruits, compotes, milk and
other milk products in Class 29, and coffee, cocoa, artificial
coffee, pastry, confectionery, preparations made from cereals,
spices and ices in Class 30. The Board of Appeal annulled this
decision in so far as it related to preserved fruits and spices,
but dismissed the appeal as to the remainder.
General Court's decision
The General Court held that the Board of Appeal was correct to
find that coffee, cocoa and artificial coffee in Class 30 were
similar to milk products in Class 29, as they were complimentary
and often consumed together. Similarly, it found that preparations
made from cereals were similar to milk products (albeit to a low
degree). While the applicant claimed that preparations made from
cereals and milk products were made using different technologies,
they did not explain how this prevented an undertaking producing
both products, and the Court held that the goods were clearly in
competition as some consumers would substitute cereal milk, such as
quinoa or oat milk, for cow's milk. Compotes were similar to
milk products, as were pastry and confectionery –according to
the General Court these goods were in competition with milk
products as they can all be consumed as desserts or sweet
The General Court agreed that the signs were similar to an
average degree. Both marks represented a cartoon-like image of a
dinosaur which gave an impression of a "friendly and happy
creature". The shapes of the dinosaurs' bodies were almost
identical, as were their standing positions with one leg raised and
a slightly raised tail. While there were minor differences between
the marks – the pattern of the blotches on the bodies, the
wearing of boots on the earlier mark's dinosaur, the presence
of a glass of milk in his hand and the fact that he was sticking
his tongue out – constituted only minor elements of
differentiation which did not stay in the memory of the relevant
public. Conceptually, the marks were highly similar as they both
gave an impression of a friendly, happy creature.
Finally, the General Court held that there was a likelihood of
confusion. The opposition was therefore upheld.
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