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
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.
It was not disputed that the goods in question were
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.
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
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
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.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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1.The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent.
The UK government has not yet invoked Article 50 of the Treaty on European Union (this is likely to happen by the end of March), and the UK's actual exit from the European Union is at least two years away.
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