Judgment — ECLI:EU:T:2009:147
Date: 2009-05-07
Language of the case: Spanish
Court formation: Sixth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Word marks applied for
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible

Summary of the Judgment Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) There is, for the average consumer in Spain and in the Community, no likelihood of confusion between, on the one hand, the word sign CK CREACIONES KENNYA, for which registration as a Community trade mark was sought in respect of ‘Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery’ and ‘Clothing, footwear, headgear’ in Classes 18 and 25 of the Nice Agreement respectively, and, on the other hand, the figurative mark CK Calvin Klein, previously registered as a Community trade mark, and the figurative mark CK, previously registered in Spain in respect of goods in the same Classes. The visual, phonetic and conceptual examination of the marks shows that the overall impression created by the earlier marks is dominated by the sole or dominant element ‘ck’ whereas that created by the trade mark applied for is dominated by the element ‘creaciones kennya’. The lack of similarity between the signs at issue thus stems from the visual, phonetic and conceptual differences noted above. The fact that the goods covered by the conflicting marks are identical does not alter the assessment that it is inappropriate to conclude that there was a likelihood of confusion since the signs in question are not similar. It is clear from the mark applied for that the group of letters ‘ck’ refers to the words ‘creaciones kennya’, which distinguish without ambiguity the trade mark applied for from the earlier marks. As the conflicting signs must be similar for there to be a likelihood of confusion, a finding that there is no such similarity precludes the possibility of a likelihood of confusion. (see paras 36, 52-54)