Decision on Opposition No B 2 823 899 page: 6 of 8
Consequently, the assessment of the distinctiveness of the earlier marks will rest on
their distinctiveness per se. In the present case, the earlier trade marks as a whole
have no meaning for any of the goods and services in question from the perspective
of the public in the relevant territory. Therefore, the distinctiveness of the earlier
marks must be seen as normal, despite the presence of a weak element in earlier
mark (1), as stated above in section c) of this decision.
e) Global assessment, other arguments and conclusion
According to settled case-law, the likelihood of confusion on the part of the public
must be appreciated globally, taking into account all factors relevant to the
circumstances of the case (29/09/1998, C-39/97, Canon, EU:C:1998:442, §16).
According to the same line of case-law, the global appreciation of the visual, aural or
conceptual similarity of the marks in question must be based on the overall
impression given by the marks, bearing in mind, in particular, their distinctive and
dominant components (11/11/1997, C 251/95, Sabèl, EU:C:1997:528, § 23).
In the present case, the goods and services are partly identical and partly similar. The
contested sign and earlier mark (1) are visually similar lower than average degree,
aurally similar to an average degree and not conceptually similar. The contested sign
and earlier mark (2) are visually similar to an average degree, aurally similar to a high
degree and the assessment is not influenced by the conceptual aspect since neither
of the signs has a meaning for the public in the relevant territory. The similarity is due
to the overwhelming commonalities in the signs, in particular in relation to earlier
mark (2). As regards earlier mark (1), even if the commonalities might appear less
obvious than the differences at first, the analysis in part c) of this decision shows that
the differentiating elements have a low degree of distinctiveness or fulfil only a purely
decorative role. Their impact on consumers is consequently reduced since the public
will rather focus on the most distinctive part of earlier mark (1), which, moreover, is at
the beginning of the sign.
Consumers generally tend to focus on the beginning of a sign when they encounter a
trade mark. This is because the public reads from left to right, which makes the part
placed at the left of the sign (the initial part) the one that first catches the attention of
Account is taken of the fact that average consumers rarely have the chance to make
a direct comparison between different marks, but must trust in their imperfect
recollection of them (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323,
§ 26). Even consumers who pay a high degree of attention need to rely on their
imperfect recollection of trade marks (21/11/2013, T-443/12, ancotel, EU:T:2013:605,
§ 54). This is also true for business customers with specific professional knowledge.
Furthermore, evaluating likelihood of confusion implies some interdependence
between the relevant factors and, in particular, a similarity between the marks and
between the goods or services. Therefore, a lesser degree of similarity between
goods and services may be offset by a greater degree of similarity between the
marks and vice versa (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 17).
Likelihood of confusion covers situations where the consumer directly confuses the
trade marks themselves, or where the consumer makes a connection between the
conflicting signs and assumes that the goods/services covered are from the same or
economically linked undertakings.