European Union: A Finding Of Likelihood Of Confusion; It's All Second Nature To The General Court

The applicant, Aranynektar Termekgyarto es Kereskedelmi KFT ("KFT"), applied for the word mark, "Natür-bal" as an EU trade mark. The application covered "sugar, honey, treacle, sweet spreads (honey); honeys (for food); natural honey". Naturval Apicola, SL. ("Naturval") subsequently opposed the application based on its earlier EU registration for NATURVAL (word mark). This registration covered various foodstuffs in classes 29 and 30, including sugar, honey and condiments. Naturval claimed there was a likelihood of confusion but this was rejected by the Opposition Division.

The Second Board of Appeal upheld Naturval's appeal, agreeing that the two marks were similar and that there was a likelihood of confusion. As a result, the application was refused in its entirety.

The case came before the General Court who made the following assessment:

The relevant public

The Court disagreed with KFT's assertion that the relevant public was limited to Turkish consumers (who KFT's products would be aimed at and purchased by). While the Court agreed that Turkish consumers were most likely to purchase KFT's products, the relevant public would include those who would purchase the goods actually covered by the application. This would be the broader general public in the EU.

The goods

It was not disputed that the goods in question were identical.

The marks

Visual similarity

In finding that the marks were visually similar to an average degree, the Court considered four different elements of the marks. Firstly, the marks contained the same number of letters. Secondly, the marks shared 7 out of their 8 letters. While the Applicant's Mark contained the letter "u" accented with an umlaut, the Court considered the letters "u" and "ü" to be highly similar visually. It also found that, even if the letters "u" and "ü" were considered to be different letters in some alphabets, the marks would still share a large number of identical letters. Thirdly, the sequence of letters at the beginnings and ends of the words were the same. Lastly, the Applicant's Mark had two elements separated by a hyphen, whereas the Earlier Mark did not.

Phonetic similarity

First the Court highlighted that both marks had three syllables and, for the most part, shared the same sequence of letters. As a result, the marks would be pronounced with the same rhythm.

The Court agreed with the Board of Appeal's assessment that the marks were phonetically identical to the Spanish speaking public (and this was not disputed by the parties). In the Spanish language, the letters "v" and "b" are pronounced in the same way. However, while the same did not apply in the French and Italian languages, the Court decided that the marks would still have a high level of similarity in view of the other letters they shared and the overall sound of the marks. In addition, the umlaut above the letter "u" would not change the sound of the marks to the French and Italian speakers. The Court acknowledged that the umlaut would have some significance in other languages but asserted that the similarities between the marks would outweigh any differences. As a result, the Court concluded that the marks were either phonetically identical (to the Spanish speaking consumer), highly similar (in other EU languages) or of average similarity in languages where the umlaut is recognised.

Conceptual similarity

The Court considered the marks were conceptually identical in relation to their connotations with nature, at least for a large part of the relevant public.

Likelihood of confusion

Taking all of the above into account, the Court found that there was a likelihood of confusion between the marks. In coming to this conclusion, the Court dismissed KFT's claim that the goods would be targeted at the ethnic Turkish market, since marketing intentions should not form part of an assessment of possible confusion.

This case highlights that while adding punctuation, an accent or a different letter to a mark could be enough to fall short of the identity threshold when compared to another mark, the mark may still be considered sufficiently similar to it. However, if the goods in question had been similar and not identical in this case, perhaps the outcome would have been different.

Case T-503/15

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