Decision on Opposition No B 2 723 529 page: 4 of 6
Therefore, the signs are similar to an average degree.
Conceptually, for part of the public neither of the signs has a meaning. Since a
conceptual comparison is not possible, the conceptual aspect does not influence the
assessment of the similarity of the signs. However, it cannot be excluded that part of
the relevant public may associate the contested sign with a mythical Slavic god. As
the other sign will not be associated with any meaning, the signs are not conceptually
similar for part of the relevant 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
e) Global assessment, other arguments and conclusion
The goods are partially identical and partially similar to a low degree.
The signs are visually and phonetically similar in so far as they coincide in three
letters placed in the same order. Aurally, the similarity between the signs is enhanced
given that the sounds of the final letters of the signs (namely, ‘M’ in the earlier mark
and ‘N’ of the contested sign), can be hardly audible taking into account their position
within the signs. As regards the differences between the signs created by the
different initial letters, the Opposition Division is of the opinion that these are not
enough to counteract the similarities between the signs. This will be the case in
particular since the goods at issue are usually ordered orally. In these circumstances,
the phonetic perception of the sign may also be influenced by factors such as the
likely presence of various other sounds perceived by the recipient of the order at the
same time. Such considerations are relevant where the goods in question are
normally ordered at sales points with an increased noise factor, such as bars or
nightclubs. In such cases, attaching particular importance to the phonetic similarity
between the signs at issue may be appropriate (15/01/2003, T-99/01, Mystery,
EU:T:2003:7, § 48). In these circumstances, the association that the part of the
relevant public may make between the contested sign and the notion of a mythical
Slavic god, will not counteract the overall similarities between the signs.
What is more, it should be noted that average consumers only rarely have the
chance to make a direct comparison between the different marks but must place their
trust in the imperfect picture of them they have kept in their mind.