Decision on Opposition No B 2 537 689 page: 5 of 10
The global appreciation of the visual, aural or conceptual similarity of the marks in
question must be based on the overall impression given by the marks, bearing in
mind, in particular, their distinctive and dominant components (11/11/1997, C-251/95,
Sabèl, EU:C:1997:528, § 23).
The earlier mark is a word mark and it must be borne in mind that it is protected for
the word itself not its specific depiction. Hence it is considered to be registered for the
words in both lower case or upper case or even a combination thereof. The word
'PREVALIN' has no meaning for the relevant public and it is distinctive.
The contested sign is a figurative mark consisting of the word element 'prevalien'
written in a combination of slightly stylised black and white characters, the latter
placed against a circular background. The figurative elements are not particularly
elaborate or sophisticated since they are limited to a geometrical element and the
alternation of the colours used to represent the characters and only a slight
stylisation of some of the latter, the remaining being rather standard. In any event, it
must be noted that when signs consist of both verbal and figurative components, in
principle, the verbal component of the sign usually has a stronger impact on the
consumer than the figurative component. This is because the public does not tend to
analyse signs and will more easily refer to the signs in question by their verbal
element than by describing their figurative elements (14/07/2005, T-312/03,
Selenium-Ace, EU:T:2005:289, § 37). The word 'prevalien' has no meaning for the
relevant public and is distinctive.
Visually, while the differences in the layout of the signs and the specific stylisation of
the contested sign are perceptible, they form part of the figurative aspects to which
the public will give only limited importance. Of more relevance is the fact that the
earlier mark and the word element of the contested sign coincide in the letters
'PREVALI(*)N whereas they differ in the additional letter 'E' of the contested sign.
Therefore, the signs are high to an average degree.
Aurally, irrespective of the different pronunciation rules in different parts of the
relevant territory, the additional letter 'E' in the contested sign slightly modifies its
pronunciation in comparison to the earlier mark; however such difference is not very
obvious in any of the languages of the relevant territory and even hardly perceptible
in Dutch. The signs are, therefore, similar to a high degree and, in Dutch at least,
they are even similar to such a degree that they are near-identical.
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.
The Opposition Division notes that the applicant refers to previous national decisions
to support its arguments with regard to such comparison. 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,
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.