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Thursday, 16 November 2006

MORE ON YUKI/YUPI


More on Yuki/Yupi

Earlier today the IPKat posted a blog on the Court of First Instance decision in YUKI, which was handed down only in French. A charming, modest French reader (who wishes to remain known as such) now tells the Kat:

"*Similarity of goods

-the Court found that some "perfumery products" can also be used for personal hygienic purposes, just as the function of some « hygienic products" can be to clean, beautify and perfume the human body. Hence there is some similarity between « hygienic products » and « perfumery products ». The Court concluded that the opponent's objections concerning the comparison of the products made by the Board of Appeals were well-founded as far as « hygienic products » were concerned, which it wrongly found different to « perfumery products ».

-regarding the other products, it is interesting to quote: "The fact that, as the opponent puts forward, some of the products designated by the application usually contain perfume is insufficient either to compare them to "perfumery products" or give to them a competing or complementary character to the latter. Furthermore, these products are not generally sold within the same shelves in the stores and for some of them, not in the same stores. Finally, it must be added that any relation between the products is not sufficient to establish similarity."

*Similarity of signs

-as opposed to what the Board of Appeals concluded, and in line with the opponent's opinion, the difference between letters "p" and "k" is not striking because they both have a longer part (ascender/descender). There is hence strong visual similarity;

-phonetic similarity (strong)

-conceptual difference however: the Court disagrees with the Board which considered that the fact that the prior trade mark had a specific meaning would counterbalance the low degree of visual and phonetic similarity between the opposed signs, such as that there was no likelihood of confusion. The Court is of the opinion that there are two mistakes in that the visual and phonetic similarities are not weak as asserted but are strong, and that the assumed chances that the average consumer understands the meaning of the expression "yupi" better than the sign YUKI does not necessarily gives to the word a sufficiently clear and precise meaning (especially in the context of these products). Besides, the fact that this word appears in only one Spanish dictionary does not establish that the relevant public may immediately understand its meaning. The Court considers therefore that the conceptual differences do not neutralize the other similarities and that overall the signs are very similar.

There is thus a likelihood of confusion regarding soaps, perfumery products, essential oils, cosmetics, hair lotions; dentifrices" of class 3, and « hygienic products" of class 5, covered by the application and on the other hand, " perfumery products".

Decision partly cancelled as such".
Thanks so much, mews the IPKat. Merpel and I are so grateful to you for taking the trouble.

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