I spy with my little eye…

You can probably understand the following text because of an effect called typoglycemia:

Aoccdrnig to a rscheearcher at Cmabrigde Uinervtisy, it deosn't mttaer in waht oredr the ltteers in a wrod are, the olny iprmoetnt tihng is taht the frist and lsat ltteer be at the rghit pclae. The rset can be a toatl mses and you can sitll raed it wouthit porbelm. Tihs is bcuseae the huamn mnid deos not raed ervey lteter by istlef, but the wrod as a wlohe.

But what about the following ‘word’?

The car company HD HYUNDAI CO., LTD. (‘Hyundai’) considered the sign to resemble its well-known trade name and trade mark in lower case letters, namely ‘hyundai’.

Background

On 3 December 2021, Global Trade Services, Inc. (‘GTS’) filed for registration of EU trade mark no. 018615959 for the sign depicted above. Registration was sought for various goods in class 9, including ‘home security cameras; touchscreens; robots with artificial intelligence’.

Hyundai filed an opposition on the basis of five national trade marks registered in Benelux, France, Italy, Spain and Portugal for the figurative mark and the word mark ‘HYUNDAI’, covering, inter alia, goods in class 9, including ‘digital cameras; digital information display [DID]’.

The Opposition Division of the European Union Intellectual Property Office (‘EUIPO’) rejected the opposition. Hyundai appealed.

The Board of Appeal’s decision

The EUIPO’s Board of Appeal (‘BoA’) dismissed the appeal (R1147/2023-1).

It held that the relevant public consists of the general public and professionals with an average to high level of attention.

The BoA found the signs to be dissimilar. As regards the contested signs, consumers will not be able to perceive any letters but only vertical bars of different heights, two of which have dots. The later mark will not immediately and without any mental effort be recognised as ‘hyundai’. The sign is missing horizontal lines, which are an essential component of the normal graphic representation of the word ‘hyundai’. It is much more probable that the sign is recognised only as the combination of some basic figurative elements. Only after an in-depth analysis, which consumers do not tend to perform, might a very stylised representation of the word ‘hyundai’ be perceived. The contested mark is more likely to be understood as an abstract and unitary shape, especially because ‘hyundai’ has no obvious meaning for the goods in question, which could help consumers to identify it in the contested sign.

Hyundai argued that the publication of the contested mark referenced Vienna class 27.05.25, which covers ‘letters presenting some other special form of writing’. The BoA rejected this argument because the classification does not show the perception of the relevant public.

The BoA considered the fact that the contested trade mark may have been developed based on the word ‘hyundai’ to be irrelevant because the public would still have to engage in a highly imaginative cognitive process in order to decipher the sign. Likewise, any dishonest intent on the part of GTS was found to be irrelevant in opposition proceedings.

Hyundai claimed that the contested sign will immediately be perceived as the word ‘hyundai’ because this trademark is the 35th most valuable brand in the world and has been used for 55 years. The BoA dismissed this argument. A lack of similarity cannot be overcome by a high level of distinctiveness.

On that basis, the signs were found to be visually dissimilar. A phonetic and conceptual comparison was not possible. Therefore, the opposition failed.

Comment

The BoA’s decision is supported by artificial intelligence. After uploading a picture of GTS’ sign to Google’s Gemini and asking “What is the picture about?”, Gemini replied:

The image you sent me appears to be a trademark image filed with the United States Patent and Trademark Office (USPTO). It depicts a blue logo on a white background, but without any additional context, it is impossible to say for certain what the logo represents or what company or organization it belongs to. […]

The more leading question “Can you read a word in the picture?” resulted in the following (rather creative) response:

No, I cannot read a word in the image. The logo is a stylized blue bird with its wings outstretched, facing to the right. There are no letters or words within the design itself.

Highly stylised letters and words are challenging to attack and defend before the EU instances. The General Court confirmed that the top part of the following sign

will not be perceived as the letters ‘IJTI’ because of their highly stylised depiction (case T‑743/18). Likewise, the sign

will not be understood as ‘KIO’ but rather as an arrow pointing to the left followed by the number ‘10’ or the letters ‘IO’ (case T-67/19). Even the following sign was not considered to be perceived as ‘fly’ (case T-475/16):

If you can immediately read a word in the following sign, your perception is better than that of the average consumer, according to the General Court in case T-354/20:

These examples should caution branding teams (and the lawyers advising them) when creating new logos. One should not just consider whether the target consumer understands the sign without much mental effort but also if examiners at trade mark offices and judges will immediately understand it. Survey evidence might be helpful to convince the EUIPO that a sign is understood as a particular word.

The BoA’s finding that the increased level of distinctiveness of the ‘Hyundai’ trademark is not decisive in the assessment of the similarity of the signs should be treated with caution. The relevant public’s familiarity with a trade mark can shape its perception and might make it easier to recognise the earlier mark in the contested sign. Therefore, an increased level of distinctiveness might be relevant when assessing the similarity of the signs.