Interessante caso deciso da Trib. UE 26.02.2025, Joined Cases T‑1066/23 to T‑1069/23, Schweppes v. EUIPO, di cui vi avvisa Marcel Pemsel in IPkat, relativo (per la parte denominativa) alla comparazione tra lingua inglese e l’esatta traduzione in lingua lituana (similissima al russo, pare).
Bene il Trib. conferma che nonostante la uguiaglianza concettuale (seppur in linguje diverse) agevomente percepuibile dal consumatore lituano,non c’è confondibilità: ciò per la scarsa rilevanzz della compmnente denomiantiva rispetto alla compentne figuratia e per la debolezza , direi meglio nullitòa della prima.
<<63 The Board of Appeal concluded, in paragraphs 51 to 53 of the contested decisions, that there was a likelihood of confusion or association on the part of the target public, namely the part of the relevant Latvian public that would understand the contested marks as being the literal translation of the Cyrillic script of the earlier mark, taking into account the identity or similarity of the goods at issue, the average level of attention of that public, and the fact that the conceptually identical nature of the marks at issue outweighed their phonetic and visual differences, irrespective of the normal distinctive character of the earlier mark.
64 The Board of Appeal also found that the average Latvian consumer might believe that the goods covered by the marks at issue came from the same undertaking or from economically linked undertakings. That public, while noticing the differences between the marks, could perceive the contested marks as being a variation of the earlier mark adapted to meet the needs of consumers throughout the market of the European Union. In that regard, the Board of Appeal stated that the use of different languages was a marketing practice in order to better adapt the marks to different national markets.
65 The applicant submits that there is no likelihood of confusion. It maintains, in essence, that the significant visual and phonetic differences between the marks at issue outweigh any possible conceptual similarity.
66 EUIPO and the intervener dispute the applicant’s arguments.
67 EUIPO reproduces, in that regard and in essence, the assessment of the Board of Appeal and notes in particular that, contrary to the applicant’s assertions, account should be taken of the Latvian public and not the entire public of the European Union. After specifying, inter alia, that the method of buying the goods covered by the marks at issue was only one factor among all the elements which it was required to take into account in that global assessment, EUIPO concludes, in essence, that the points of dissimilarity between the signs at issue are not sufficient to dispel the relevant consumer’s impression that those signs are similar.
68 In this instance, it is necessary, first, to note that the marks at issue have many visual differences in respect of both their word elements and, as the applicant states, their figurative elements, which, while they do not dominate the overall impression, are nonetheless not negligible. As regards everyday food products, as the applicant rightly emphasises, purchasing is primarily based on their visual aspects in so far as they are usually sold in self-service stores where consumers choose the product themselves and must therefore rely primarily on the image of the mark applied to that product (see, to that effect, judgments of 11 December 2013, Eckes-Granini v OHIM – Panini (PANINI), T‑487/12, not published, EU:T:2013:637, paragraphs 63 and 65, and of 23 February 2022, Ancor Group v EUIPO – Cody’s Drinks International (CODE-X), T‑198/21, EU:T:2022:83, paragraph 61 and the case-law cited).
69 Second, it follows from paragraphs 37 and 38 above that the marks at issue had, overall, a very low degree of phonetic similarity, if any.
70 Third, although the signs at issue, as has been concluded in paragraph 59 above, are conceptually identical for a part of the relevant public, the word elements ‘tea’ and ‘чай’, on which, in particular, that conceptual identity is based, are devoid, as has been noted in paragraph 29 above, of distinctive character given that, for that public, they are descriptive of the goods covered by the marks. Those signs being conceptually identical is therefore likely, in the circumstances of the case, to play a limited role in the assessment of the likelihood of confusion on the part of that part of the public, in accordance with the case-law cited in paragraph 62 above.
71 Fourth, as regards the EUIPO decisions relied on by the intervener, it is sufficient to note that, in its review of legality, the Court is not bound by EUIPO’s decision-making practice (judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65).
72 In those circumstances, and although the goods at issue were directed at the public at large which had a merely average level of attention, it must be held that, taking into account the normal distinctive character of the earlier mark, which is not disputed by the applicant, and the significant visual and phonetic differences between the marks at issue, the Board of Appeal, irrespective of whether the marks are conceptually identical for the part of the relevant public which it took into account in its examination, made an error of assessment in finding that there was a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009 in Cases T‑1066/23 and T‑1067/23, and within the meaning of Article 8(1)(b) of Regulation 2017/1001 in Cases T‑1068/23 and T‑1069/23.
73 Therefore, as the error of assessment thus made by the Board of Appeal is such as to, in itself, lead to the annulment of the contested decisions in their entirety, it follows that the single plea in law must be upheld, without it being necessary to examine the first complaint of that plea, and, consequently, the contested decisions must be annulled.>>
Decisione esatta,