Watching the ECJ

Yesterday the ECJ delivered its decision in an appeal against a CFI decision in T.I.M.E. ART Uluslararasi Saat Ticareti ve diş Ticaret AŞ.v OHIM.

T.I.M.E. ART applied to register a figurative mark including the term QUANTUM for watches as a CTM. The application was opposed by the proprietor of the French QUANTIEME mark for goods in Classes 14 and 18. The opposition failed before OHIM but was allowed by the CFI.

The ECJ refused an appeal against the CFI's judgment (what a surprise).

Most of the reasoning consists of quite worthy stuff highlighting how it's for the CFI to make its decision on the facts, and the ECJ won't overturn this unless there's a very good reason to do so. The court also stresses that the global appreciation analysis involves taking ALL relevant factors into account. This means that no single factor should be overriding in a way that stops a global assessment of confusion dead (T.I.M.E. ART had effectively argued that both the low level of distinctiveness of the earlier mark and the conceptual differences between them should have, of themselves, meant that there was no likelihood of confusion). The IPKat says that this seems quite right - the nature of a global assessment is that all factors must be thrown into the mixing pot before a decision can be reached. However, the ECJ leaves its most interesting comment until last. The court said:

"As regards the fact that the particular circumstances in which the goods in question were marketed were not taken into account, the Court of First Instance was fully entitled to hold that, since these may vary in time and depending on the wishes of the proprietors of the opposing marks, it is inappropriate to take those circumstances into account in the prospective analysis of the likelihood of confusion between those marks",

i.e., since the trade marks owner can choose to sell the goods with minimal sales assistance or with very close personal assistance, the mode of sale can't be taken into account. The IPKat says surely this has to be true of most goods, except perhaps pharmaceuticals and other controlled substances?