‘na’, ‘tu’, ‘ra’, ‘vi’ and ‘va’
Merkenrecht. Oppositieprocedure tegen aanvrage woordmerk NATURAVIVA. Ouder Duits en Gemeenschapswoordmerk VIVA. Relatieve weigeringsgrond, geen verwarringsgevaar. Visuele, fonetische en conceptuele toetsing leidt ertoe dat Board of Appeal juist de tekens NATURAVIVA en VIVA als verschillende tekens ziet. Gezien het verschil in o.m. aantal lettergrepen ‘na’, ‘tu’, ‘ra’, ‘vi’ and ‘va’ 5 lettergrepen tegenover 'vi' en 'va' slechts twee, ziet het Gerecht dit niet anders en de klacht wordt afgewezen.
46 Even if, visually and aurally, the word ‘viva’ is in both signs at issue, they are, however, significantly different.
47 Visually, as the Board of Appeal pointed out in paragraph 24 of the contested decision, the mark applied for NATURAVIVA is longer than the earlier mark VIVA and the beginning of the mark applied for is different to that of the earlier mark. Furthermore, due to its position at the beginning of the mark applied for, the element ‘natura’ is likely to have a greater impact than the rest of the mark applied for and thus to create a significant difference as regards the overall impression created by the earlier mark (see, to that effect, Joined Cases T‑183/02 and T‑184/02 El Corte Inglés v OHIM – González Cabello and Iberia Líneas Aéreas de España (MUNDICOR) [2004] ECR II‑965, paragraph 81, and Case T‑112/03 L’Oréal v OHIM – Revlon (FLEXI AIR) [2005] ECR II‑949, paragraph 64).
49 Phonetically, as the Board of Appeal stated in paragraph 25 of the contested decision, the mark applied for consists of five syllables ‘na’, ‘tu’, ‘ra’, ‘vi’ and ‘va’, whereas the earlier mark is only made up of two syllables ‘vi’ and ‘va’. Those two syllables are, indeed, the same as the last two syllables in the mark applied for. Nevertheless, the first three syllables of the mark applied for, to which the consumer’s attention is normally drawn, are different (see, to that effect, MUNDICOR, paragraph 83). Similarly, the relevant public will have a tendency to sound the beginning of the mark applied for more emphatically than the end, and thereby emphasise the differences between the two signs. It must therefore be considered that the signs at issue display different phonetic sequences.
50 Conceptually, as has been noted in paragraph 38 above, the signs at issue are clearly different for those of the relevant public who understand their meaning, whereas, for the rest of the public, a conceptual comparison of the signs is irrelevant as they do not have a clear and precise meaning.
51 In the light of the foregoing, it must be concluded that the Board of Appeal rightly held, in paragraph 30 of the contested decision, that the signs NATURAVIVA and VIVA are different.
