Judgment — ECLI:EU:T:2006:10
Date: 2006-01-12
Language of the case: English
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Figurative marks applied for;General
Procedure: Action for annulment - successful
Origin: France

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 earlier identical or similar mark registered for identical or similar goods or services (Council Regulation No 40/94, Art. 8(1)(b)) 2. 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 (Council Regulation No 40/94, Art. 8(1)(b)) 1. In the global assessment of the likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark, the respective weight to be given to the visual, phonetic or conceptual aspects may vary on the basis of the objective circumstances in which the marks may be present on the market. It should be noted in that respect that the ‘usual’ circumstances in which the goods covered by the marks in question are marketed must be taken as a benchmark, and not the particular circumstances in which the goods covered by the earlier mark are marketed. The examination of the likelihood of confusion which the authorities of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) are called on to carry out is a prospective examination. Since the particular circumstances in which the goods covered by the marks are marketed may vary in time and depending on the wishes of the proprietors of the trade marks, the prospective analysis of the likelihood of confusion between two marks cannot be dependent on the commercial intentions, whether carried out or not, and naturally subjective, of the trade mark proprietors. (see paras 103-107) 2. There is a likelihood of confusion on the part of the average French consumer within the meaning of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark between the figurative sign containing the verbal element ‘quantum’ in respect of which registration as a Community trade mark is sought for ‘watches, clocks, movements and parts thereof, watch/clock glasses, watch/clock casings, watch straps, watch chains/bracelets, watch bands, cases for watches and for clocks’ in Class 14 of the Nice Agreement, and the figurative mark Quantième, registered earlier in France for ‘clocks and watchmaking goods; jewellery’ and ‘leather goods’ in Classes 14 and 18 of the Nice Agreement respectively, given the identity and similarity of the goods covered by the respective marks, combined with the visual and phonetic similarity of the signs they consist of, without those similarities being offset to a large extent by the conceptual difference between those signs. Since likelihood of confusion is the specific prerequisite for protection of the earlier mark, that protection applies irrespective of whether the earlier mark has only weak distinctiveness. (see para. 110)