Extreem gespecialiseerd en duur
GvEA, 26 June 2008, zaak T-79/07, SHS Polar Sistemas Informáticos SL tegen OHIM / Polaris Software Lab Ltd (Nederlandse vertaling nog niet beschikbaar).
Oppositieprocedure. Aanvraag gemeenschapsmerk beeldmerk POLARIS. Oppositie o.g.v. ouder gemeenschapsmerk woordmerk POLAR. Financiële software. Oppositie afgewezen. Een gespecialiseerd publiek laat zich minder snel verwarren.
“34. Furthermore, even if the applicant’s argument were to be interpreted as meaning that the consumer concerned would notice the earlier mark when purchasing non-specialised software and pay less attention on such an occasion, that argument does not preclude account being taken of the particularly high degree of attention paid by such a consumer when he purchases the specialised software in question. Accordingly, the Board of Appeal cannot be criticised for failing to have envisaged the possibility that the choice made between different specialised software by the professional consumer concerned could be influenced by his earlier experience acquired when purchasing software for personal use.
48. In the light of those considerations, the Board of Appeal was right to point out that, for a very attentive consumer, the significant differences between the marks at issue, each considered as a whole, overrode their similarities.
50. In the present case, the Board of Appeal observed, in paragraph 22 of the contested decision, that the goods at issue were extremely specialised, expensive and often developed over many years in collaboration with the end consumer. The consumers concerned, the staff of financial institutions responsible for the acquisition of such goods, will carry out a scrupulous examination of the products on the market and very probably contact the manufacturers. In the course of that selection process, those consumers will be aware not only of the characteristics of the goods, but also of the identity of the manufacturers and the marks on the market and will therefore be very attentive to even slight differences between those marks.
51. Having regard to those particular circumstances in which the goods concerned are marketed, which have not been called into question by the applicant, the Board of Appeal rightly considered that there were sufficient differences between the marks at issue to dispel, in this case, any likelihood that the consumer concerned, who is especially attentive, might believe that the goods covered by those marks originated from the same undertaking or, as the case may be, from economically linked undertakings.”
Lees het arrest hier.
