Euipo on trademarks visually similar but conceptually different

The Opposition division states a new benchmark in the evaluation of a sign alleged to be in a likelihood of confusion or association with the earlier trade mark.

In the EUIPO case B3073746, Krys Group Services, holder of the EUTM “KRYS”, filed an opposition against the trademark application of the figurative mark “KISS”, claiming that – in the category of “optical goods and services” – there could have been a risk of confusion between the two signs.

The EUIPO division, taking into account the fact that the two sign are both of four letters and both start with the letter “K” and finish with the letter “S”, stated that the two signs are conceptually different: the word “kiss” has a clear and shared meaning, also for the non-English speaking customers; and that the differences in relatively short signs are perceived without difficult by the relevant public. Therefore the risk of confusion or association is below an average degree, visually and aurally, and inexistent by a conceptual level assessment.

Although the earlier trademark has been recognized with an high degree of distinctiveness, through its use on the market, in certain categories, a global assessment of a likelihood of confusion implies that a greater degree of similarity between the goods (glasses, optics goods) may be offset by a lower degree of similarity between the marks, and vice versa. In addition, for this category of market and products, the attention of the public is high.

Finally, responding to a reason for opposition, with a relevance certainly greater than an “obiter dictum”, the Decision affirms that the Office is not bound by its previous decisions. Recalling a General Court ruling (30/06/2004, T 281/02, Mehr für Ihr Geld, EU:T:2004:198), the EUIPO clarified how the principle of the precedent is based on a logical application and not on a merely chronological value.