Decision on Opposition No B 2 790 346 page: 7 of 8
relevant to the circumstances of the case (22/06/1999, C 342/97, Lloyd Schuhfabrik,
EU:C:1999:323, § 18; 11/11/1997, C 251/95, Sabèl, EU:C:1997:528, § 22).
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).
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,
The goods and services compared are partly identical, partly similar to varied
degrees and partly dissimilar. The signs are visually and aurally similar while
conceptually not similar. The concept evoked by the contested sign’s word ‘Dr’ will
have less impact on the overall impression of the signs, given the non-distinctive and
generic nature of this word. The signs share six out of the earlier mark’s seven
letters, in the same order. The differences between them are not sufficient to offset
the similarities, in particular in the absence of any additional visual feature.
In their observations, the applicants refer to a German Patent Court decision.
However, it must be noted that decisions of national courts and national offices
regarding conflicts between identical or similar trade marks at national level do not
have a binding effect on the Office since the European Union trade mark regime is an
autonomous system, which applies independently of any national system
(13/09/2010, T-292/08, Often, EU:T:2010:399).
Even though previous national decisions are not binding, their reasoning and
outcome should be duly considered, particularly when the decision has been taken in
the Member State that is relevant to the proceedings.
In the present case, the applicants have failed to provide sufficient information with
regard to the actual goods and services, the signs and the relevant territory in the
case which they had cited. In any event, in the present proceedings the word
‘almond’ lacks any meaning in the relevant territories and is, therefore, perfectly
Considering all the above, there is a likelihood of confusion on the part of the Czech-
Polish- and Hungarian-speaking part of the public. As stated above in section c) of
this decision, a likelihood of confusion for only part of the relevant public of the
European Union is sufficient to reject the contested application.
Therefore, the opposition is partially well founded on the basis of the opponent’s
European Union trade mark registration No 5 155 791. It follows that the contested
trade mark must be rejected for the goods and services found to be identical or
similar, even if only to a low degree, to the goods of the earlier trade mark since the
similarities found between the signs are considered sufficient to offset the fact that
some of the goods and services are only similar to a low degree.
The rest of the contested goods and services are dissimilar to the opponent’s goods.
As similarity of goods and services is a necessary condition for the application of