Appleyard Lees

Dental Impression

In February 2012 Aldi Karlslunde K/S Aldi filed opposition proceedings against a Community Trade Mark application by credentis AG for the word mark CURODONT in respect of goods and services in classes 3 and 44. The opposition was based on Danish registration number VR 199406075 EURODONT.  The Opposition Division found the contested goods “dentifrices and mouthwashes” to be identical and “cleaning and polishing preparation for use in dental technology and dental practices” to be similar to the goods protected by the earlier mark.  However, the contested services in class 44 were regarded as dissimilar to the goods in class 3.  Furthermore the Opposition Division found that there was a clear conceptual difference between the marks due to the inclusion of the element “Euro” in the earlier mark.  The Opposition Division took the view that this conceptual difference outweighed the visual and aural coincidences and the opposition was rejected in its entirety.

Aldi successfully appealed the decision.  The BoA found that the contested goods in class 3 were identical to those protected by the earlier mark and the contested services in class 44 were similar.  Crucially, the BoA took the view that the marks should be considered as a whole and that there was no conceptual similarity between them indicating that the prefix “Euro” has no specific meaning in relation to the protected products. Citing an extensive list of case precedents it emphasised that because the mark applied for reproduced in substantial part the earlier mark the signs were sufficiently similar to make the relevant public believe that the identical goods and services in the application have the same trade origin or are economically or industrially linked.

The General Court agreed with the BoA and upheld its decision reiterating that “the sole difference of one letter between the signs at issue cannot cancel out the similarity between them”.  Bearing in mind the visual and phonetic similarity of the marks, as well as the identical and similar goods and services, “the likelihood of confusion must be assessed globally according to the relevant public’s perception of the signs and the goods and services in question, and taking into account all factors relevant to the  circumstances of the case”.  This case illustrates how any conceptual similarity between marks tends to be regarded as less likely to cause confusion than where there is visual and aural similarity.

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