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 the marks.

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 snacks.

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.

Case T-21/15

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