Anteriorità opposta:
Marchio denominativo cbiesto in registrazione: << CHIQUITA QUEEN >>.
Stessi prodotti : frutta fresca.
Ebbene, Trib. UE 29.05.2024, T-79/23, Chiquita Brands v. EUIPO-Jara 2000, annullando l’appello ammnistrativo, esclude il rischio di confondibilità.
Qui interessa il passaggio dove include la rinomanza del secondo marcbio (di parte di esso: di CHIQUITA) tra i fattori da conteggiare per il giudizio di confondibilità.
<<46 In that regard, EUIPO’s argument that the reputation of the mark applied for, or of its distinct elements, is irrelevant for the purposes of assessing the relative ground for refusal, referred to in Article 8(1)(b) of Regulation 2017/1001, must be rejected.
47 It is necessary to distinguish between, on the one hand, the factor based on the distinctive character of the earlier mark, which is linked to the protection granted to such a mark and which is to be taken into consideration in the context of the overall assessment of the likelihood of confusion and, on the other, the distinctive character which an element of a composite mark may have, which is linked to its ability to dominate the overall impression produced by that mark and which must be examined from the stage of assessing the similarity of the signs (see, to that effect, order of 27 April 2006, L’Oréal v OHIM, C‑235/05 P, not published, EU:C:2006:271, paragraph 43, and judgment of 25 March 2010, Nestlé v OHIM – Master Beverage Industries (Golden Eagle and Golden Eagle Deluxe), T‑5/08 to T‑7/08, EU:T:2010:123, paragraph 65).
48 Thus, in the present case, since it is not disputed that the mark CHIQUITA enjoys a reputation in the European Union for some fresh fruits, it is possible to take into account, at the stage of the assessment of the similarity of the signs at issue, that reputation as a relevant factor for assessing the distinctive character of the element ‘chiquita’ appearing in the sign CHIQUITA QUEEN.
49 Furthermore, since the examination of the distinctive character of the elements of a sign cannot be confused with the examination of the distinctive character of the earlier mark carried out as part of the overall assessment of the likelihood of confusion, the case-law referred to in paragraph 28 of the contested decision, as well as that relied on in EUIPO’s response, which refers to the reputation of the earlier mark under the protection granted to the latter in the context of the assessment of the overall risk confusion, is irrelevant.
50 It follows that the Board of Appeal made an error of assessment in concluding that the term ‘chiquita’, appearing in the sign of the mark applied for, had weak distinctive character>>.
Deicisione probabilmente esatta ma che richiederebbe un esame approfondito, data la non banale questione teorica sottostante.
Marcel Pemsel in IPKat, che dà notizia della sentenza, sostanzialmente concorda, pur evidenziando contrasti con giurisprudenza precedente.