Barbara Becker v Harman International Industries Inc.
Date: 2010-06-24
31. In that regard, it is settled case-law that the risk t hat the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94 (see Case C-334/05 P OHIM v Shaker  [2007] ECR I-4529, paragraph 33, and judgment of 20 September 2007 in Case C-193/06 P Nestlé  v OHIM , paragraph 32; and, to that effect, with respect to First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), Case C-39/97 Canon  [1998] ECR I-5507, paragraph 29, Case C-342/97 Lloyd Schuhfabrik Meyer  [1999] ECR I-3819, paragraph 17, and Medion , paragraph 26).
32. The existence of a likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (see, to that effect, Case C-251/95 SABEL  [1997] ECR I-6191, paragraph 22; Lloyd Schuhfabrik Meyer , paragraph 18; Medion , paragraph 27; OHIM  v Shaker , paragraph 34; and Nestlé v OHIM , paragraph 33).
33. It is also settled case-law that the global appreciation of the likelihood of confusion, in relation to the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global appreciation of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see, to that effect, SABEL , paragraph 23; Lloyd Schuhfabrik Meyer , paragraph 25; Medion , paragraph 28; OHIM v Shaker , paragraph 35; and Nestlé v OHIM , paragraph 34).
34. However, in paragraphs 30 and 31 of Medion , the Court held that, beyond the usual case where the average consumer perceives a mark as a whole, it is quite possible that in a particular case an earlier mark used by a third party in a composite sign including the name of the company of the third party still has an independent distinctive role in the composite sign, without necessarily constituting the dominant element. In such a case, the overall impression produced by the composite sign may lead the public to believe that the goods or services at issue come, at the very least, from companies which are linked economically, in which case the likelihood of confusion must be held to be established.
37. Account must also be taken of whether the person who requests that his first name and surname, taken together, be registered as a trade mark is well known, since that factor may obviously influence the perception of the mark by the relevant public.
38. Furthermore, it must be held that, in a composite mark, a surname does not retain an independent distinctive role in every case solely because it will be perceived as a surname. The finding with respect to such a role may be based only on an examination of all the relevant factors of each case.
40. It follows from all the foregoing that the General Court erred in law in basing its assessment of the conceptual similarity of the marks on general considerations taken from the case-law without analysing all the relevant factors specific to the case, in disregard of the requirement of an overall assessment of the likelihood of confusion, taking account of all factors relevant to the circumstances of the case, and based on the overall impression produced by the marks at issue.