TODAY'S NEWS FROM LUXEMBOURG

The Court of First Instance (CFI) of the European Court of Justice has just handed down two new decisions in appeals from the Office for Harmonisation in the Internal Market (OHIM) today. Both appeals were dismissed.

* Case T-169/02 Cervecería Modelo, SA de CV v OHIM: an application to register a figurative mark contianing the words NEGRA MODELO for beers was correctly refused on the ground of likelihood of confusion with an earlier national registration of a figurative mark consisting of the word MODELO for the same product. The CFI held that the OHIM Board of Appeal was right to hold that, though the marks were different, the dominant element of each of them was the word MODELO.

* Case T-296/02 Lidl Stiftung & Co. KG v OHIM: this was an application to register LINDENHOF for beer and other beverages which succeeded despite an opposition filed by the owner of an earlier national trade mark LINDERHOF for sparkling wines. On the question of comparison of goods the CFI said:

"54 Sparkling wines are alcoholic drinks and, as such, clearly distinct from non-alcoholic drinks such as the drinks covered by the trade mark application, both in shops and on drinks menus. The average consumer, deemed to be reasonably well-informed and reasonably observant and circumspect, is used to and aware of that distinction between alcoholic and non-alcoholic drinks, which is, moreover, necessary, since some consumers do not wish to or cannot consume alcohol.

55 Furthermore, if the drinks covered by the trade mark application are drunk on special occasions and for enjoyment, they are also consumed, if not substantially, on other occasions and for relaxation. Thus they are rather everyday consumer items. Sparkling wines, on the other hand, are drunk almost solely, if not solely, on special occasions and for enjoyment and much less frequently than the goods covered by the trade mark application. They are in a much higher price bracket than are the drinks covered by the trade mark application.

56 Finally, sparkling wines are no more than an atypical replacement for the drinks covered by the trade mark application. The goods in question cannot therefore be considered to be in competition with each other.

57 The fact referred to by the applicant that the goods in question may be consumed one after the other or even mixed is not such as to alter the findings set out in the preceding paragraphs. It is true of many drinks which are not, however, similar (for example rum and cola).

58 The same is true of the fact referred to by the applicant that the advertising for the goods in question always shows a person who enjoys a moment of happiness whilst drinking the beverage concerned, inasmuch as that fact applies to almost all drinks, even the most varied.

59 In view of the above, it must be concluded that the goods in question are more dissimilar than they are similar. However, the differences between them are not sufficient of themselves to exclude the possibility of a likelihood of confusion, in particular where the mark applied for is identical to an earlier mark which is particularly distinctive ...".

The IPKat wrote these notes in a bit of a hurry and will revisit them tomorrow to see if he got them right or not ...