Draadjes

GvEA, 23 September 2009, zaak T-99/06, Phildar SA tegen OHIM / Comercial Jacinto Parera, SA.

Gemeenschapsmerk. Oppositieprocedure tegen aanvraag Gemeenschapswoordmerk FILDOR o.g.v. ouder national “semi-figurative” merk PHILDAR en ouder national woordmerk FILDOR (textiel).  GvEA vernietigt beslissing BoA OHIM.

82. (…)  It is possible that the consumer might let himself be guided in his choice by the imperfect aural impression that he has retained of the earlier mark which may, inter alia, remind him of something in common with a ‘thread’. The importance of the aural aspect was mentioned only in respect of some of the goods concerned such as the ‘strings’ in Class 22, the various goods in Class 23 and those in Class 26, with regard to which the Board of Appeal accepted that they are generally sold over the counter, that is to say, orally (paragraphs 26 to 28 of the contested decision).

(…)

85. It follows from all the foregoing that, in the circumstances of the present case, mere visual dissimilarity is not sufficient to remove the risk of the public believing that the goods are being offered by the same undertaking or, as the case may be, by economically-linked undertakings.

86. In the light of that finding, there is no need to examine the applicant’s argument that the Board of Appeal failed to take into consideration the degree of distinctiveness of the earlier mark (paragraph 25 above).

87. It follows from all of the foregoing that the first plea must be upheld and, accordingly, the contested decision must be annulled.

Lees het arrest hier.