Judgment — ECLI:EU:T:2003:311
Date: 2003-11-25
Language of the case: French
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Word marks applied for;Actions before the Community Courts;Similarity between marks
Procedure: Action for annulment - unfounded
Origin: France

Summary of the Judgment 
1. Community trade mark — Appeals procedure — Appeals before the Community 
judicature — Assertion by the applicant for a trade mark facing opposition that he 
intends to use it for only some of the products referred to in the application — Not 
necessary to take into account 
(Council Regulation No 40/94, Art. 8(1)(b)) 
II - 4953 
SUMMARY — CASE T-286/02 
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 — Word mark consisting of two 
words 
(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 — 'KIAP MOU' and 'MOU' 
(Council Regulation No 40/94, Art. 8(1)(b)) 
1. For the purposes of applying 
Article 8(1)(b) of Regulation No 40/94 
on the Community trade mark, the 
likelihood of confusion must be 
assessed in relation to all the goods 
specified in the trade mark application. 
In order to be taken into consideration, 
a restriction of the list of goods or 
services specified in a Community 
trade mark application must be made 
in accordance with certain detailed 
rules, on application for amendment 
of the application filed, in accordance 
with Article 44 of Regulation No 40/94 
and Rule 13 of Regulation No 2868/95 
implementing Regulation No 40/94. 
It is therefore not necessary to take 
account of a mere assertion that does 
not comply with those rules and 
according to which the applicant 
intends to use the mark applied for 
only in relation to some of the goods 
referred to in the trade mark appli­
cation. 
(see paras 29-30) 
2. Two marks are similar within the 
meaning of Article 8(1)(b) of Regu­
lation 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. Those aspects 
are the visual, the aural and the con­
ceptual, and the assessment of the 
similarity must be based on the overall 
impression created by the trade marks, 
bearing in mind, in particular, their 
distinctive and dominant components. 
II - 4954 
ORIENTAL KITCHEN v OHIM — MOU DYBFROST (KIAP MOU) 
In that regard, it is necessary to make 
an initial analysis based on the premiss 
that, where one of the two words 
which alone constitute a word mark is 
identical, both visually and aurally, to 
the single word which constitutes an 
earlier word mark, and where those 
words, taken together or in isolation, 
have no conceptual meaning for the 
public concerned, the marks at issue, 
each considered as a whole, are 
normally to be regarded as similar. 
(see paras 38-39) 
3. For the public made up of end users of 
everyday food products in the United 
Kingdom, there is visual and aural 
similarity between the word mark 
'KIAP MOU', registration of which as 
a Community trade mark has been 
applied for in relation to food products 
in Classes 29 and 30 of the Nice 
Classification, presented in general 
terms, and the word mark 'MOU', 
previously registered in the United 
Kingdom for identical or at least simi­
lar products falling under the same 
classes of that classification, so that the 
relevant public is likely to think that 
the food products bearing the word 
mark applied for may come from the 
undertaking which is proprietor of the 
earlier trade mark. 
In so far as the degree of similarity 
between the trade marks at issue is 
sufficient for it to be considered that 
there exists a likelihood of confusion 
between them, the trade mark applied 
for falls within the provisions of 
Article 8(1 )(b) of Regulation No 40/94 
of the Community trade mark. 
(see paras 37, 40-45) 
II - 4955