62018TJ0716_RES
Case T‑716/18
(publication by extracts)
The Logistical Approach BV
v
European Union Intellectual Property Office
Judgment of the General Court (Fifth Chamber), 20 September 2019
(EU trade mark — Opposition proceedings — Application for the EU figurative mark Idealogistic Compass Greatest care in getting it there — Earlier international figurative mark IDÉA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EU) 2017/1001)
EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered in respect of identical or similar goods or services — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Determination of the relevant public — Level of attention of the public
(European Parliament and Council Regulation 2017/1001, Art. 8(1)(b))
(see paragraphs 18, 23-25)
EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered in respect of identical or similar goods or services — Likelihood of confusion with the earlier mark — Figurative mark Idealogistic Compass Greatest care in getting it there
(European Parliament and Council Regulation 2017/1001, Art. 8(1)(b))
(see paragraphs 26-30, 63-70)
Résumé
In its judgment of 20 September 2019, The Logistical Approach v EUIPO — Idea Groupe (Idealogistic Compass Greatest care in getting it there) (T‑716/18), the Court annulled the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) confirming the decision of the Opposition Division, which had upheld the opposition to registration of the figurative mark Idealogistic Compass Greatest care in getting it there, based on the earlier international figurative mark IDÉA.
According to the Court, even if the services at issue were identical, as the Board of Appeal had found, and taking into account the normal distinctiveness of the earlier mark, the Board of Appeal should have ruled out any likelihood of confusion, at least with regard to the services aimed solely at the professional public, which will display a high level of attention. On account of that high level of attention when choosing the services at issue and in the light of the low degree of similarity between the signs at issue, in particular because their structures differ, a point which will not escape the notice of a particularly observant and circumspect public, there can be no likelihood of confusion as regards the commercial origin of those services.
In that regard, the Court pointed out that, contrary to what the Board of Appeal had stated, the fact that professionals only rarely have a chance to compare the various marks directly and therefore have to rely on their imperfect recollection of them, cannot lead to the conclusion that the recollection of the marks at issue will be determined, in the present case, largely by their element in common, ‘idea’. Although the element ‘idea’ is included in one of the dominant elements of the mark applied for and is the distinctive element in the earlier mark, it will not be remembered by professionals as the only element that makes it possible to identify the marks at issue.
Consequently, the Court upheld the single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001, (
1
) as regards the services covered by the mark applied for which are aimed exclusively at the professional public.
However, since the Board of Appeal had not exhaustively identified which services were aimed solely at professionals displaying a high level of attention and which services were aimed both at professionals and at the general public displaying an average level of attention, the Court upheld the single plea in law in its entirety and annulled the contested decision in its entirety.
The Court stated that since the Board of Appeal had found that there was a likelihood of confusion both with regard to (i) the services that are aimed at professionals and at the general public and to (ii) those that are aimed solely at professionals, it was possible for it, for reasons of procedural economy, not to identify the average consumer with regard to each service in question. However, that approach is compatible with the principles that emerge from the case-law only if the Board of Appeal was correct in finding that there is a likelihood of confusion both with regard to (i) the services that are aimed at a public consisting of the general public, displaying an average level of attention, and of the professional public, displaying a high level of attention, and to (ii) the services that are aimed solely at the professional public, which is not the situation in the present case.
(
1
)	Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).