Elixer: een lovende connotatie
Gerecht EU 23 maart 2012, zaak T-157/10 (Barilla tegen BHIM/Brauerei Schlösser)
Gemeenschapsmerkenrecht. In de oppositieprocedure komt aanvrager van het woordmerk ALIXIR houdster van ouder Duits woordmerk Elixeer tegen. De oppositieafdeling wijst de oppositie in haar geheel toe. Het beroep wordt verworpen. Aangevoerd middel: er is ten onrechte verwarringsgevaar vastgesteld.
De klacht wordt afgewezen, de kamer van beroep heeft geen fouten gemaakt: "the earlier mark does have a weak distinctive character because it can be differentiated, albeit only slightly, from the German word ‘Elixier’, which has a laudatory connotation as regards drinks." Er is wel sprake van onderscheidend vermogen.
24 In those circumstances, the Board of Appeal did not err in finding that the signs at issue have a low degree of visual similarity and a high degree of phonetic similarity.
25 As regards the conceptual comparison of the signs, it should be noted that – as the Board of Appeal observed – the phonetic similarity between the mark applied for and the German word ‘Elixier’ may lead the average consumer to associate that mark with the German word, just as he may associate it with the earlier mark for the reasons outlined in paragraph 22 above. That assessment does not mean that greater weight has been attributed to the phonetic aspect than the conceptual aspect; rather, it comes about as a result of taking into account the possible pronunciation of a word in order to determine the way in which it will be conceptually perceived by the relevant public or by a part of that public.
26 Consequently, the finding made by the Board of Appeal regarding similarity between the signs was not vitiated by error.27 As regards the global assessment of the likelihood of confusion, the applicant’s argument, based on the weak distinctive character of the earlier mark, cannot be upheld. In that context, it should be noted that, although the distinctive character of the earlier mark must be taken into account for the purposes of assessing the likelihood of confusion, it is only one factor among others involved in that assessment. Accordingly, even in a case involving an earlier mark of weak distinctive character, there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered (see judgment of 16 September 2009 in Case T‑400/06 Zero Industry v OHIM – zero Germany (zerorh+), not published in the ECR, paragraph 74 and the case-law cited).
29 In the present case, it is appropriate to confirm the assessment made by the Board of Appeal to the effect that the earlier mark does have a weak distinctive character because it can be differentiated, albeit only slightly, from the German word ‘Elixier’, which has a laudatory connotation as regards drinks.
