The General Court has ruled on whether there is a likelihood of
confusion between the marks LITU and PITU in relation to wine.
Viña y Bodega Botalcura SA applied to register the word
LITU in Class 33 for 'Wines from Chile'. Anton Rimerschmid
Weinbrennerei und Likorfabrik GmbH opposed the EU application on
the basis of their earlier EUTM word mark PITU, registered in
classes 30, 32 and 33, including for 'Alcoholic beverages (with
the exception of beer)'. This opposition was rejected.
Upon appeal, the Board of Appeal agreed with the opposition
division that there was no likelihood of confusion. It found that
the relevant territory was the European Union and that the goods
were directed at the public at large with a 'normal' level
The goods were considered identical and the Board of Appeal
further held that, although there was a certain degree of visual
and phonetic similarity, they were not conceptually similar and
there was no likelihood of confusion. Due to the shortness of the
marks, the public would pay more attention to the differences
between them and especially to the beginning of the marks. As a
result, the fact that the marks did not share the same first letter
was important. This visual difference was further significant as
the goods were commonly purchased in supermarkets, where this
visual difference would be easily noticed.
Before the General Court, the opponent submitted that the signs
were both visually and phonetically similar and that a conceptual
comparison would not change the impact on the assessment of the
likelihood of confusion. It also sought to rely on a UKIPO decision
that there was a likelihood of confusion between PITU and RITU.
The General Court stated that although the marks were visually
similar due to the last three letters of the marks, this did not
offset the differences between the first letters of the words. In
that sense, the Court held that 'P' differed significantly
from 'L', regardless of how they were written. The General
Court distinguished the UKIPO decision in that 'P' and
'R' were considered visually similar, although noted that
they are not bound by national authorities in similar cases.
Phonetically, the General Court also relied on the differences
between the first two letters of PITU and LITU to hold that the
marks are only similar to a certain degree, as the differences in
the letter allow them to be distinguished. The opponent tried to
argue that particular importance should be attached to the phonetic
similarity of the marks as they are often ordered in noisy
locations. However, the General Court followed the argument of the
EUIPO and the Board of Appeal in that wines are normally sold in
self-service shops where the consumers primarily rely on the image
of the mark. Even in restaurants and bars, consumers choose wine
from a wine list before placing their order verbally.
Conceptually the General Court held that the marks do not have
any meaning for the majority of the public, meaning that a
conceptual comparison is not possible.
In light of the above, the General Court found that there was no
likelihood of confusion and the appeal was therefore dismissed.
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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.
The General Court has upheld a Board of Appeal decision dismissing an opposition to the figurative EUTM mark CHOCOLOVE, based on earlier marks for CHOCOLATE, CSOKICSÖ and a figurative mark CHOCOLATE BROWN.
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