Decision on Cancellation No 13 982 C Page 4 of 5
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 applicant did not explicitly claim that its mark is particularly distinctive by virtue of
intensive use or reputation.
Consequently, 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 from the perspective of the public in the relevant territory.
Therefore, the distinctiveness of the earlier mark must be seen as normal.
e) Global assessment, other arguments and conclusion
According to settled case-law, the risk that the public might believe that the goods or
services in question come from the same undertaking or, as the case may be, from
economically-linked undertakings, constitutes a likelihood of confusion (29/09/1998,
C-39/97, Canon, EU:C:1998:442, § 29). The likelihood of confusion on the part of the
public must be appreciated globally, taking into account all factors relevant to the
circumstances of the case (see ‘Canon’, § 16). In addition, the global assessment of
the risk of confusion entails certain interdependence between the factors taken into
account and, in particular, between the similarity of the trademarks and the similarity of
the goods or services covered. Accordingly, a low degree of similarity between those
goods or services may be offset by a high degree of similarity between the marks, and
vice versa (23/10/2002, T-6/01, Matratzen, EU:T:2002:261, § 25).
The marks are both comprised by a single word element which is nearly identical, the
only difference being the last letters, which, moreover, will be pronounced identically.
While the earlier mark has a normal degree of distinctiveness and the goods are
identical and similar, this insignificant difference in only one letter and only from the
visual perspective, in marks that are not short, cannot exclude the possibility that
average consumers will confuse the marks, in particular taking into account that they
only rarely have the chance to directly compare the marks.
Considering the above, there is a likelihood of confusion on the part of the public.
Therefore, the application is well founded on the basis of the applicant’s German trade
mark registration No 2 902 278. It follows that the contested trade mark must be
declared invalid for all the contested goods.
According to Article 109(1) EUTMR, the losing party in cancellation proceedings must
bear the fees and costs incurred by the other party.
Since the IR holder is the losing party, it must bear the cancellation fee as well as the
costs incurred by the applicant in the course of these proceedings.