For the relevant public composed of professionals from the construction sector, and, occasionally, well-informed average consumers in the construction sector who buy the products concerned in DIY stores, there is no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark between, on the one hand, the figurative sign REDROCK, registration of which as a Community trade mark is sought in respect of goods falling within Classes 1, 2, 17, 19 and 37 of the Nice arrangement, and, on the other hand, the word mark KEPROCK, previously registered in Germany for goods or services in Classes 17, 19 and 37 and the word marks REDROCK, FLEXIROCK, FORMROCK, FLOOR-ROCK, TERMAROCK, KLIMAROCK, SPEEDROCK, DUROCK, SPLITROCK, PLANAROCK, TOPROCK, KLEMMROCK, FIXROCK, SONOROCK PLUS, VARIROCK, SONOROCK et MASTERROCK, previously registered in Germany for goods and services in Classes 17, 19 or 37.

The degree of phonetic similarity between two marks is of limited significance in the case of goods which are marketed in such a way that, when making a purchase, the relevant public usually perceives visually the mark designating those goods. That is the case with the building materials covered by the signs at issue, which are marketed in a way that permits the average consumer to perceive visually the marks affixed to them. Similarly, the choice of the goods in question by the relevant public is necessarily preceded by an examination of the characteristics of those goods, in shops or on the internet, as the public wishes to satisfy itself that the materials used fulfil their function in the long term in the building into which they are incorporated. These circumstances also mean that the relevant public is visually confronted with the image of the mark before it makes its choice.

In those circumstances, there is no likelihood of confusion between the marks REDROCK and KEPROCK, taken in isolation, even in respect of the goods covered by the two marks which are identical. The average consumer, showing a particularly high level of attention at the time of purchase, will perceive the differences between the marks and will not think that the goods bearing the signs at issue have the same commercial origin.

The same applies to the services covered by the marks REDROCK and KEPROCK. The signs at issue will not be confused by the relevant public for reasons concerning the average distinctive character of the mark KEPROCK, the relevant public’s particularly high attention level, the desire of that public to know the commercial origin of the goods and services, and the fact that that there is a low degree of visual similarity between the signs at issue and average aural similarity, whilst the conceptual comparison of the signs is neutral.

In view of the relevant public’s particularly high level of attentiveness, the differences between the contested mark and the earlier marks FLEXIROCK, FORMROCK, FLOOR-ROCK, TERMAROCK, KLIMAROCK, SPEEDROCK, DUROCK, SPLITROCK, PLANAROCK, TOPROCK, KLEMMROCK, FIXROCK, SONOROCK PLUS, VARIROCK, SONOROCK and MASTERROCK are sufficient to exclude any likelihood of confusion.

Since the element ‘rock’ is largely descriptive and laudatory of the goods and services covered by the earlier trade marks, it is not capable of being the shared element of a family of trade marks. Recognition of the family of trade marks containing the serial element ‘rock’ would lead precisely to the monopolisation of the element ‘rock’, which is largely descriptive and laudatory of the goods and services covered by the earlier trade marks. The enhanced protection resulting from the recognition of a family of trade marks would mean that, in practice, no other operator would be able to register a trade mark containing the element ‘rock’ and could even, depending on the circumstances, be banned from using that element in its slogans and advertising materials. Such a restriction of free competition, which would be the result of a basic English word being reserved for a single economic operator, cannot be justified by the desire to reward the creative or advertising efforts expended by the proprietor of the earlier trade marks. When there is no enhanced distinctiveness through use, the commercial value represented by that reservation is the result not of such efforts on the part of the proprietor, but only of the meaning of the word, predetermined by the language in question, which refers to the characteristics of the goods and services concerned.

(see paras 19, 24, 74-76, 78-81, 88, 93, 95)