The Opposition Division upheld the opposition in part, as regards the goods in Classes 5 and 24 covered by the application for registration. However, it dismissed the opposition in respect of ‘hosiery; underclothing, underpants; underwear’ in Class 25, finding that those goods were not similar to the goods covered by the earlier marks. Not satisfied with its partial victory, Hartmann appealed unsuccessfully to the Fourth Board of Appeal. According to the Board of Appeal, the goods at issue were not targeted at a specialised public but at the public at large. Even though DIGNITUDE and DIGNITY were similar, there was no likelihood of confusion between them because the goods in Class 25 covered by the application for registration were different from those covered by the earlier marks.
Hartmann then appealed further to the General Court, but to no avail. Underpants are underpants, said the Court, and incontinence pants are incontinence pants, and never the twain shall meet. Well, that was a bit of a paraphrase, but it's not far off what the Court really said:
The relevant consumer
* The Board of Appeal got its knickers slightly in a twist when defining the 'relevant public' through whose eyes the likelihood of confusion must be assessed. The Board thought the relevant public consistent of everyone, and especially Germans. The Court disagreed. The proper approach was to take account of consumers who were liable to use both Protecsom's and Hartmann's products --in this case, consumers suffering from incontinence or their carers, since they were the only people likely to purchase both types of goods and, therefore, to be confused if the marks were similar.That relevant public would however demonstrate a particularly high level of attention at the time of purchase since the nature of the goods covered by the earlier trade marks requires a precise and informed choice.
Similarity of goods
* First, Hartmann could not claim that the purpose of the goods concerned was identical. The goods covered by Protecsom's mark for were articles of clothing the purpose of which was, in particular, to cover the lower part of the human body in order to protect it from friction and changes in temperature [Merpel, who always wondered why humans wear such garments, is gratified to know this ...]. By contrast, the goods covered by Hartmann’s trade marks fulfilled an impermeable function to deal with urinary or faecal leakage. This being so, the goods at issue would be perceived by the final consumer as serving a different purpose.
* Thirdly, as to the argument that the distribution channels of the goods concerned were frequently the same, goods such as the napkin pants covered by the earlier trade marks were usually distributed by pharmacies or by medical supply shops, while underwear and goods covered by the mark applied for were available to consumers in clothes shops and in the clothing sections of department stores.
* Fourthly, it could not be said that the goods at issue were in competition with each other in the absence of any element of interchangeablity. A consumer’s 'deliberated choice' between the goods at issue would be made on the basis of considerations relating to their medical condition.
* Fifthly, it could not be argued that the ordinary underwear covered by DIGNITUDE and the absorbent napkins covered by DIGNITY were complementary in that the former could be completed by the latter: two goods are complementary only where they are closely connected in the sense that one is indispensable or important for using the other, so that consumers may think that the same company is responsible for manufacturing those goods. No such relationship could be established in this case.