Voor uitleven

GvEA, 20 oktober 2009, zaak T-307/08, Aldi Einkauf GmbH & Co. tegen OHIM / Goya Importaciones y Distribuciones, SL.

Gemeenschapsmerk. Oppositieprocedure tegen Gemeenschapsbeeldmerk 4 OUT Living o.g.v. ouder Spaans nationaal beeldmerk Living & Co (kleding). Oppositie toegewezen. Verwarringsgevaar.

35. With regard to the second argument, to the effect that the similarity of the word element ‘Living’ common to both marks is insufficient to established a likelihood of confusion, given that that element has only a weak distinctive character in the earlier mark, the Board of Appeal explained in paragraphs 30 and 31 of the contested decision that, although the distinctiveness of the ‘Living’ element cannot be considered high, it must still be considered as a distinctive feature in view of the great importance of the visual element in the opposing marks in relation to goods in classes 18 and 25, which are in principle purchased after a visual inspection. That position is confirmed by the case-law, according to which the finding of a weak distinctive character for the earlier trade mark does not prevent a finding that there is a likelihood of confusion. Although the distinctive character of the earlier mark must be taken into account when assessing the likelihood of confusion (see, by analogy, Case C-39/97 Canon [1998] ECR I-5507, paragraph 24), it is only one factor among others in that assessment. Thus, 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 (Case T-134/06 Xentral v OHIM – Pages jaunes (PAGESJAUNES.COM) [2007] ECR II-5213, paragraph 70; see also, to that effect, Case T-112/03 L’Oréal v OHIM – Revlon (FLEXI AIR) [2005] ECR II-949, paragraph 61).

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38. With regard to the applicant’s fourth argument, according to which the way in which the opposing marks are formed is different, as the ‘Living’ element constitutes the beginning of the earlier mark, whereas it is at the end of the mark applied for, that circumstance is not such as to bring into question the similarity between the marks concerned or the likelihood of confusion existing between them. The different positions of the ‘Living’ element do not in any way affect the dominant character that that element has for the marks concerned. The Board of Appeal was thus right to conclude that, even if the degree of similarity created by the common element ‘Living’ is weakened by other elements, the similarity is not neutralised in the present case.

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40      In the light of all of the foregoing, it must be held that the Board of Appeal did not err in law in finding that there was a likelihood of confusion between the mark applied for and the earlier mark. The applicant’s single plea must, therefore, be rejected and the action accordingly dismissed.

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