Decision on Opposition No B 2 640 087 page: 4 of 6
application for registration of a European Union trade mark that would adversely
affect the protection of the first mark, even if only in relation to the perception of
consumers in part of the European Union (18/09/2008, C-514/06 P, Armafoam,
EU:C:2008:511, § 57). Therefore, a likelihood of confusion for only part of the
relevant public of the European Union is sufficient to reject the contested application.
According to the opponent, the signs have the same meaning. However the
Opposition Division does not agree with this statement. The contested mark does
have a meaning from the perspective of a part of the public in the relevant territory,
for example the Bulgarian- and Romanian-speaking parts of the public. However, the
coinciding element ‘LOVI’ is not meaningful in certain territories, for example in
France, Greece Italy, Portugal or Spain. Consequently, the Opposition Division finds
it appropriate to focus the comparison of the signs on the French-, Greek-, Italian-,
Portuguese- and Spanish-speaking parts of the public.
Visually, the signs coincide in the sequence of letters ‘LOVI’, which are the first four
letters of the earlier mark and constitute the entire contested mark. However, they
differ in the letter ‘E’, present at the end of the earlier mark.
Therefore, the signs are visually similar at least to an average degree.
Aurally, irrespective of the different pronunciation rules in different parts of the
relevant territory, the pronunciation of the signs coincides in the sound of the letters
‛LOVI’, present identically in both signs. The pronunciation differs in the sound of the
letter ‛E’ of the earlier sign, which has no counterpart in the contested mark.
Therefore, the signs are aurally similar at least to an average degree.
Conceptually, neither of the signs has a meaning for the French-, Greek-, Italian-,
Portuguese- and Spanish-speaking parts of the public in the relevant territory. Since
a conceptual comparison is not possible, the conceptual aspect does not influence
the assessment of the similarity of the signs for this part of the public.
As the signs have been found similar in at least one aspect of the comparison, the
examination of likelihood of confusion will proceed.
d) Distinctiveness of the earlier mark
The distinctiveness of the earlier mark is one of the factors to be taken into account
in the global assessment of likelihood of confusion.
The opponent did not explicitly claim that its mark is particularly distinctive by virtue
of intensive use or reputation.
Consequently, the assessment of the distinctiveness of the earlier mark will rest on its
distinctiveness per se. In the present case, the earlier trade mark as a whole has no
meaning for any of the goods in question from the perspective of the public in the
relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as