Decision on Opposition No B 2 729 195 page: 4 of 5
signs coincide in their beginnings, they are visually similar at least to an average
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
‘LUM*N’ and the sounds of the vowels ‘I’ and ‘E’, which are pronounced in reverse
order in the conflicting signs. The pronunciation differs in the sound of the final letter,
‘O’, of the earlier mark. Consequently, the signs are similar to an average degree.
Conceptually, neither of the signs has a meaning for 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.
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
e) Global assessment, other arguments and conclusion
In the present case, the goods are similar to a low degree. The signs are visually and
aurally similar to the extent that they coincide in their beginnings and differ slightly in
the arrangement of the vowels ‘I’ and ‘E’, as well as in the final letter, ‘O’, of the
earlier sign. Generally, consumers tend to focus on the first element of a sign when
being confronted with a trade mark. This is justified by the fact that 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 the reader. Consequently, the identical first
parts of the marks at issue have to be taken into account when assessing the
likelihood of confusion between the marks. In addition, according to the principle of
imperfect recollection, average consumers rarely have the chance to make a direct
comparison between different marks, but must trust in their imperfect recollection of
The Court has set out the essential principle that evaluating likelihood of confusion
implies some interdependence between the relevant factors and, in particular, a
similarity between the marks and 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.
Taking into account all of the above, the differences between the signs are not
enough to counteract the visual and aural similarities, which may lead the relevant