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Reports of Trade Mark Cases for CIPA Journal Reports of Trade Mark Cases for CIPA Journal December 2019 Trade mark decisions Decisions of the General Court (GC) and Court of Justice (CJ) Ref no. Application (and where applicable, earlier Comment mark) GC FITNESS Following the EUIPO's dismissal of an application for a declaration of invalidity T‑536/18 - dairy products, jellies, fruit, vegetables, protein preparations (29) under article 59(1)(a), European Food Nestlé SA v filed an appeal in which they submitted EUIPO; European - cereals; foodstuffs based on rice or new evidence before the BoA. The matter Food SA flour (30) was referred to the GC on the - non-alcoholic drinks (32) admissibility of this evidence before returning to the BoA. 10 October 2019 The BoA had held that the new evidence Reg 2017/1001 had to be taken into account and, therefore, found the registration to be Reported by: invalid on the basis that the mark was Robert Milligan descriptive of the goods. However, the GC found that the BoA was not required to take into account the new evidence but instead it should have exercised its discretion as to whether the evidence should be admissible and provide reasons explaining their decision. Therefore, the GC annulled the BoA's decision. Ref no. Application (and where applicable, earlier Comment mark) GC The GC upheld the BoA's decision that T-10/19 the mark was descriptive pursuant to article 7(1)(c). United States Seafoods LLC v The word and figurative elements of the EUIPO mark in combination were descriptive of the nature and geographical origin of the goods concerned. The relevant English- 17 October 2019 speaking general public would have Reg 207/2009 perceived the sign as referring to seafood originating from the US, since part of the US flag was reproduced in the mark. The - fish; fish fillets (29) Reported by: differences between the sign and the US Nicholas flag were minor. Puschman As a result of the conclusion on article 7(1)(c), it was unnecessary for the GC to consider arguments based on article 7(1)(b). Ref no. Application (and where applicable, earlier Comment mark) GC AXICORP ALLIANCE The GC annulled the BoA's decision in so T‑279/18 - pharmaceutical and veterinary far as the BoA dismissed the opposition under articles 8(1)(b) and (5), because Alliance preparations; dietetic substances adapted for medical use (5) the BoA had infringed article 47(2) by Pharmaceuticals interpreting the specification of the Ltd v EUIPO; ALLIANCE earlier rights strictly on the basis of a AxiCorp GmbH 1 literal meaning only. 17 October 2019 The BoA had interpreted the specification of Alliance's rights as Reg 2017/1001 excluding 'chemical preparations for - pharmaceutical preparations but not pharmaceutical purposes'. Since Alliance including infants' and invalids' foods had only proved genuine use of its marks Reported by: and chemical preparations for for those excluded goods, its opposition Bryony Gold pharmaceutical purposes (5) was rejected insofar as it was based on articles 8(1)(b) and (5). The GC held that , if correct, this would lead to the absurd result that Alliance had intended to register a category of goods which it then restricted by a broadly equivalent category of goods. The GC held that, where two literal interpretations of a specification are equally possible, other factors should be taken into account when interpreting specifications, in particular the intention of the proprietor concerned. To avoid absurd results for proprietors, specifications should be given their most plausible and predictable interpretations in light of such factors. Ref no. Application (and where applicable, earlier Comment mark) GC The GC upheld the BoA's decision that there was a likelihood of confusion T‑41/19 between the marks under article 8(1)(b) MSI Svetovanje, in relation to the goods that had been marketing, d.o.o. found to be identical or similar. ("MSI") v EUIPO; In relation to the goods in class 5, the Industrial fact that the food supplements covered Farmaceutica by the earlier mark were sold in Cantabria, SA pharmacies and specialist shops, whilst the pharmaceutical preparations covered 24 October 2019 - pharmaceutical, vetinary and sanitary by the mark applied for were only sold in pharmacies, was not sufficient to prevent Reg 2017/1001 preparations for medical purposes; dietetic foods adapted for medical them being similar. Nor was the fact that purposes; nutritional supplements (5) they were produced according to different standards. Reported by: - meat, fish, poultry and game; milk and Elizabeth Greene milk products (29) The marks were held to be visually similar, and phonetically similar to an - ice cream; beverages based on cocoa, average degree. The common identical coffee, chocolate or tea (30) element 'nume' was placed at the NUMEDERM beginning of the earlier mark where it - food supplements for human beings for was most eye-catching. The figurative medical purposes, for supplementing a elements of the later mark – placing 'nu' normal diet and for improving health (5) on top of 'me' in thick, stylised lettering – were not sufficient to distract the - meat, fish, poultry and game; milk and relevant public from the common milk products (29) element. The GC did not accept MSI's - coffee, tea, cocoa and artificial coffee; submission that the separation of the ices and ice creams (30) elements meant that consumers would pronounce the mark 'new me'. 2 Ref no. Application (and where applicable, earlier Comment mark) GC The GC upheld the BoA's decision to T-498/18 allow the opposition under article 8(1)(b) in respect of all goods and T-708/18 services in the application, with the ZPC Flis sp.j exception of services for the retailing or ("Flis") v EUIPO; wholesaling of cookie molds. Aldi Einkauf The BoA failed to take into account the ("Aldi") effect of a limitation relating to the earlier German marks when it made the contested decision. The GC therefore 24 October 2019 - confectionary, sweetmeats [candy], annulled the decision of the BoA insofar Reg 207/209 wafer biscuits, waer rolls, pastries (30) that it applied to goods other than those (replaced by for which the earlier marks were actually 2017/1001) - retailing or wholesaling of registered. However, this did not affect confectionary, cookie molds, edible the outcome of the assessment on wafers and rolled wafers; the whether there was likelihood of Reported by: aforementioend but via the internet (35) confusion. Mark Day The marks were held to be similar on account of the fact that the later marks reproduced the earlier marks in their entirety. The distinctive element of the marks was the word 'moreno' and the figurative elements were laudatory, negligible and secondary to the overall impression. Similarly, the decorative differences could not offset the visual similarity and the overall impression was - coffee, coffee-based products and that the marks were phonetically very beverages with a proportion of coffee; similar. cocoa-based beverage powder (30) (the "amended list of goods") (Earlier German marks) Ref no. Application (and where applicable, earlier Comment mark) GC XOCOLAT The GC upheld the BoA's decision that T-58/18 - chocolate, chocolate goods; cocoa there was a likelihood of confusion between the marks under article 8(1)(b). Ramona Mahr v products; chocolates and confectionery EUIPO; (30) The GC held that there was visual Especialidades LUXOCOLAT similarity between the marks, as the Vira, SL mark applied for was wholly contained - pastry and confectionary goods; within the earlier mark. The fact that chocolates, nougat, marzipan, cocoa earlier mark had two additional letters 24 October 2019 (30) 'LU' at the start was not sufficient to Reg 2017/1001 - wholesaling and retailing or sale via neutralise the visual similarity produced global computer networks of pastry and by the common element 'XOCOLAT'. confectionery, chocolates, nougat, Further, the BoA's finding that the Reported by: marzipan (35) earlier mark had a weak distinctive Robert Rose - transport, storage and distribution of character did not preclude a finding of a pastry and confectionery, chocolates, likelihood of confusion: the distinctive nougat, marzipan (39) character of an earlier mark was only one factor to be taken into account when assessing likelihood of confusion. 3 Ref no. Application (and where applicable, earlier Comment mark) GC In an application for a declaration of invalidity, the GC upheld the BoA's T‑601/17 decision that the three-dimensional Rubik's Brand Ltd mark should be cancelled on the basis v EUIPO; Simba that it consisted solely of the shape of the Toys GmbH & Co. goods which was necessary to obtain a KG technical result under article 7(1)(e)(ii). Contrary to the BoA, the GC held that 24 October 2019 the essential characteristics of the mark - three-dimensional puzzles (28) were limited to the overall cube shape, Reg 2017/1001 the black lines and little squares on each face of the cube and did not include the Reported by: differences in the colours on the six faces of the cube. Rebecca Slater However, the BoA had correctly defined the intended technical result as 'axially rotating, vertically and horizontally, rows of smaller cubes of different colours until the nine squares of each face of the cube show the same colour'. The cube shape and physical separation between the small cubes, represented by the black lines, were necessary to achieve that technical result so the BoA's decision was upheld. Ref no. Application (and where applicable, earlier Comment mark) GC INTAS The GC upheld the BoA's decision that T-380/18 - prescription-only human or veterinary the earlier marks had been put to medicines (5) genuine use by the Laboratorios and that Intas there was a likelihood of confusion Pharmaceuticals - medical or veterinary injection between the marks under article 8(1)(b).
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