Judgment — ECLI:EU:T:2002:261
Date: 2002-10-23
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Identity of marks and of goods or services;Likelihood of confusion with an earlier mark
Procedure: Action for annulment - unfounded
Origin: Germany

Summary of the Judgment 
1. Community trade mark — Definition and acquisition of the Community trade 
mark — Relative grounds for refusal — Opposition by the proprietor of an identical 
or similar earlier mark registered for identical or similar goods or services — 
Likelihood of confusion with the earlier mark — Assessment criteria 
(Council Regulation No 40/94, Art. 8(1)(b) and (2)(a)(ii)) 
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SUMMARY — CASE T-6/01 
2. Community trade mark — Definition and acquisition of the Community trade 
mark — Relative grounds for refusal — Opposition by the proprietor of an identical 
or similar earlier mark registered for identical or similar goods or services — Similarity 
between the marks concerned — Assessment criteria — Complex trade mark 
(Council Regulation No 40/94, Art. 8(1)(b)) 
3. Community trade mark — Definition and acquisition of the Community trade 
mark — Relative grounds for refusal — Opposition by the proprietor of an identical 
or similar earlier mark registered for identical or similar goods or services — 
Likelihood of confusion with the earlier mark — 'Matratzen Markt Concord' and 
'Matratzen' 
(Council Regulation No 40/94, Art. 8(1)(b)) 
4. Community trade mark — Definition and acquisition of the Community trade 
mark — Relative grounds for refusal — Opposition by the proprietor of an identical 
or similar earlier mark registered for identical or similar goods or services — Earlier 
mark consisting of a descriptive word in a language other than that of the Member 
State of registration — Breach of the principle of the free movement of goods — 
None 
(Arts 28 EC and 30 EC; Council Regulation No 40/94, Art. 8(1)(b)) 
1. As is clear from Article 8(1)(b) of 
Regulation No 40/94 on the Commu­
nity trade mark, a trade mark may not 
be registered if, because of its identity 
with or similarity to the earlier trade 
mark and the identity or similarity of 
the goods or services covered by the 
two trade marks, there is a likelihood 
of confusion on the part of the public 
in the territory in which the earlier 
trade mark is protected. Moreover, 
under Article 8(2)(a)(ii) of Regulation 
No 40/94, 'earlier trade marks' means 
trade marks registered in a Member 
State with a date of application for 
registration which is earlier than the 
date of application for registration of 
the Community trade mark. 
In that regard, the risk that the public 
might believe that the goods or services 
in question come from the same under­
taking or, as the case may be, from 
economically-linked undertakings, 
constitutes a likelihood of confusion, 
which must be assessed globally, with 
all factors relevant to the circumstances 
of the case being taken into account. 
That global assessment entails a certain 
interdependence between the factors 
taken into account and, in particular, 
the similarity between the trade marks 
and between the goods or services 
covered, in which context a lesser 
degree of similarity between those 
goods or services may be offset by a 
greater degree of similarity between the 
marks, and vice versa. 
(see paras 22-25) 
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MATRATZEN CONCORD v OHIM — HUKLA GERMANY (MATRATZEN) 
2. Two marks are similar, for the pur­
poses of Article 8(1 )(b) of Regulation 
(EC) No 40/94 on the Community 
trade mark, when, from the point of 
view of the relevant public, they are at 
least partially identical as regards one 
or more relevant aspects. The visual, 
aural and conceptual aspects are rel­
evant, since the assessment of the 
similarity between two marks must be 
based on the overall impression created 
by the marks, in light, in particular, of 
their distinctive and dominant com­
ponents. 
Consequently, a complex trade mark 
cannot be regarded as being similar to 
another trade mark which is identical 
or similar to one of the components of 
the complex mark, unless that com­
ponent forms the dominant element 
within the overall impression created 
by the complex mark. That is the case 
where that component is likely to 
dominate, by itself, the image of that 
mark which the relevant public keeps 
in mind, with the result that all the 
other components of the mark are 
negligible within the overall impression 
created by it. 
(see paras 30, 32-33) 
3. From the point of view of the Spanish 
public, there exists a visual and aural 
similarity between the figurative mark 
'Matratzen Markt Concord', the regis­
tration of which as a Community trade 
mark is sought in respect of certain 
goods and services in Classes 10 
(cushions, pillows, etc.), 20 (mattresses 
etc.) and 24 (bed blankets etc.) of the 
Nice Agreement, and the word mark 
consisting of the word 'Matratzen', 
which was registered earlier in Spain 
in respect of products in Class 20 (all 
kinds of furniture, including mat­
tresses) of that agreement. 
Since the degree of similarity between 
the trade marks in question and the 
degree of similarity between the goods 
covered by them are sufficiently high, 
there is a likelihood of confusion 
between the trade marks in question, 
so that the trade mark applied for is 
caught by Article 8(1 )(b) of Regulation 
(EC) No 40/94 on the Community 
trade mark. 
(see paras 44, 48, 50) 
4. It is not contrary to the principle of the 
free movement of goods (Article 28 
EC) for it to be possible for a national 
trade mark consisting of a descriptive 
word in a language other than that of 
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SUMMARY — CASE T-6/01 
the Member State of registration to be 
opposed, on the basis of Article 8(1 )(b) 
of Regulation No 40/94 on the Com­
munity trade mark, to an application 
for a similar Community trade mark. 
Firstly, it in no way appears that the 
principle of the free movement of 
goods prohibits a Member State from 
registering such a sign as a national 
trade mark and, secondly, the Com­
munity legislature did not disregard 
Articles 28 EC and 30 EC when pro­
viding that a Community trade mark 
applied for must not be registered if 
there exists a likelihood of confusion 
between that mark and an earlier trade 
mark registered in a Member State, 
irrespective of whether the latter mark 
has a descriptive character in a lan­
guage other than that of the Member 
State of registration. 
(see paras 54, 56) 
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