Opinion of the Advocate General — ECLI:EU:C:1997:221
Date: 1997-04-29
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Intellectual, industrial and commercial property;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
Approximation of laws — Trade marks — Directive 89/104 — Registration of a new trade mark 
— Existence of identical or similar goods bearing a simäar trade mark — Likelihood of confusion 
with the earlier trade mark — Definition 
(Council Directive 89/104, Art. 4(l)(b)) 
The criterion of 'likelihood of confusion 
which includes the likelihood of association 
with the earlier mark' contained in Article 
4(1 )(b) of First Directive 89/104 to approxi­
mate the laws of the Member States relating 
to trade marks is to be interpreted as mean-
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SUMMARY — CASE C-251/95 
ing that the mere association which the pub­
lic might make between two trade marks as a 
result of their analogous semantic content is 
not in itself a sufficient ground for conclud­
ing that there is a likelihood of confusion 
within the meaning of that provision. The 
concept of likelihood of association is not an 
alternative to that of likelihood of confusion, 
but serves to define its scope. 
The likelihood of confusion must be appreci­
ated globally, taking into account all factors 
relevant to the circumstances of the case. 
That global appreciation of the visual, aural 
or conceptual similarity of the marks in 
question, must be based on the overall 
impression given by the marks, bearing in 
mind, in particular, their distinctive and 
dominant components. The wording of 
Article 4(1 )(b) of the Directive — '... there 
exists a likelihood of confusion on the part 
of the public ...' — shows that the perception 
of marks in the mind of the average con­
sumer of the type of goods or services in 
question plays a decisive role in the global 
appreciation of the likelihood of confusion. 
The average consumer normally perceives a 
mark as a whole and does not proceed to 
analyse its various details. 
The more distinctive the earlier mark, the 
greater will be the likelihood of confusion. It 
is therefore not impossible that the concep­
tual similarity resulting from the fact that 
two marks use images with analogous 
semantic content may give rise to a likeli­
hood of confusion where the earlier mark 
has a particularly distinctive character, either 
per se or because of the reputation it enjoys 
with the public. That is not the case where 
the earlier mark is not especially well known 
to the public and consists of an image with 
little imaginative content. 
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