The Board of Appeal was wrong
GvEA, 29 October 2009, zaak T-386/07, Peek & Cloppenburg tegen OHIM / Redfil, SL
Gemeenschapsmerk. Oppositieprocedure tegen aanvraag Gemeenschapsbeeldmerk AGILE o.g.v. oudere Gemeenschaps- en nationale woordmerken Aygill’s (kleding). Verwarringsgevaar. Oppositie toegewezen.
42. First, it is not certain, contrary to the assertion of the Board of Appeal, in paragraph 39 of the contested decision, that the visual aspect plays a greater role, since the goods in question are marketed in such a way that, normally, when making their purchase, the relevant public’s perception of the mark designating those goods is visual. In that regard, it should be noted that the goods in question in the present case are not all of the same nature as those in question in the case-law cited by the Board of Appeal in support of its analysis, namely Case T-57/03 SPAG v OHIM – Dann and Backer (HOOLIGAN) [2005] ECR II-287, and Case T-194/03 Ponte Finanziaria v OHIM – Marine Enterprise Projects (BAINBRIDGE) [2006] ECR II-445).
43. Second, and in any event, as is apparent from paragraphs 26 to 28 above, the Board of Appeal was wrong to describe the visual similarity between the signs at issue as being of a low degree.
44. Third, although, for the reasons referred to in paragraphs 34 to 39 above, the signs at issue are globally similar only to a low degree, the Board of Appeal was still wrong to exclude, in paragraph 41 of the contested decision, a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94, on the part of the relevant public, between the earlier mark and the mark applied for. In light of the case-law cited in paragraphs 17 to 19 above, the fact that the goods in question are identical offsets the low degree of similarity between the signs at issue.
45. The applicant’s single plea alleging infringement of Article 8(1)(b) of Regulation No 40/94 must therefore be upheld.
46. It follows from all the foregoing that the action must be upheld and the contested decision annulled.
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