Decision on Opposition No B 2 269 788 page: 11 of 13
relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as
e) Global assessment, other arguments and conclusion
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.
Account should also be 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).
In the present case, the goods and services are partly similar to varying degrees and
partly dissimilar. The earlier mark has a normal degree of distinctiveness and the
degree of attention of the public is average. The signs are visually similar to an
average degree and aurally similar to a high degree. Conceptually, depending on the
part of the public under consideration, they are dissimilar, they are not conceptually
similar or the assessment of the similarity of the signs is not be influenced by this
As explained above, although the contested sign consists of several elements, which
affects the overall impression created by the sign, as mentioned by the applicant,
most of these elements will not have much of an impact on consumers, either
because of their size or because of their secondary role. Instead, consumers will
focus on the distinctive word ‘MONA’, placed in the centre of the sign.
The similarities between ‘MOMA’ and ‘MONA’ are obvious, and the Opposition
Division considers that the differences between the signs are not sufficient to enable
consumers to differentiate the signs. 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.
The applicant refers to previous decisions of the Office to support its arguments
(18/04/2011, No B 1 640 575, OLYS/OLISANA; 30/05/2007, No B 686 347,
LOOP/LOOPSTAR; 29/06/2007, R 895/2006-2, THALASSAVITA/THALASSA-
INTERNATIONAL; 16/05/2007, No B 325 466, BLUE/BLUE CHANNEL). However,
the Office is not bound by its previous decisions, as each case has to be dealt with
separately and with regard to its particularities.
This practice has been fully supported by the General Court, which stated that,
according to settled case-law, the legality of decisions is to be assessed purely with
reference to the EUTMR, and not to the Office’s practice in earlier decisions
(30/06/2004, T-281/02, Mehr für Ihr Geld, EU:T:2004:198).
Even though previous decisions of the Office are not binding, their reasoning and
outcome should still be duly considered when deciding upon a particular case.