Now this is the interesting bit: the Board of Appeal's decision was based only on the opponent's earlier CTM -- which was revoked by OHIM's Cancellation Division after the Board gave its decision but before the General Court heard the appeal. Fuchs appealed, arguing that the opposition was devoid of purpose to the extent it was based on the earlier, now dead, CTM. No, said the court: not only could it be said that the opponent did have a legitimate interest in the opposition, but it was also the case that, since revocations don't have retrospective effect, they can't be taken into account anyway.
Joined Cases T-122/13, T-123/13 and T-77/13 Laboratoires Polive v OHIM, Arbora & Ausonia SLU. Here an OHIM Board of Appeal upheld in part a set of oppositions to registration as a CTM of the word mark DODIE and two figurative signs containing the word DODIE (one in blue, shown here, the other in black and white) on the basis that they would likely be confused with earlier Spanish and Portuguese registrations of the word mark DODOT for a range of toiletries and babycare products. Said the court, setting aside the Board's decisions, the diphthong "ie" was unusual both in Spanish and in Portuguese. What's more the intonation and rhythm likely to be adopted by any Iberian trying to pronounce that word would be markedly different from the more familiar "ot" of DODOT. These differences reduced the visual and phonetic similarity to such a degree that no likelihood of confusion would arise in the minds of the relevant public. There was also the small matter of a rabbit which -- contrary to the opponent's argument -- could not be said to be a negligible part of Laboratoire Polive's marks, even though the word itself remained the dominant element [hint to CTM applicants: maybe a smaller font and a more dominant rabbit are advisable in instances such as this ...].
|Trade mark oppositions:|
don't expect a quick result
|Not amused; confused|