"WILD PINK" and "PINK LADY" similar?

The crux of this case was whether the marks WILD PINK and PINK LADY are similar or dissimilar. The reader is invited to form a view, then read on.

The applicant filed an EUTM for WILD PINK, covering fruit and other food items. This was opposed by the owner of earlier national and EUTM registrations for PINK LADY for the same goods.

The initial opposition was rejected. The Board of Appeal confirmed that decision, finding that the two marks were dissimilar and therefore not going on to consider likelihood of confusion.

The EU General Court agreed with the Board of Appeal on these points:

• The position needs to include an assessment of which elements of the marks would be understood by non-English speakers.
• PINK is a sufficiently basic English word to be generally understood across the EU, likewise LADY.
• PINK has a descriptive meaning and a low level of distinctiveness.

However, the General Court then went on to reach different findings:

• Although PINK has a low level of distinctiveness, it does not play a negligible role in the marks and cannot therefore be disregarded.
• Because PINK is not an element which can be disregarded, there is a low degree of both visual and phonetic similarity between WILD PINK and PINK LADY.
• WILD is a word which would not be generally understood by non-English speakers. Because of this, for non-English speakers the word does not create a clear conceptual difference between WILD PINK and PINK LADY. In turn this means that there is also a low level of conceptual similarity between the marks.

The marks WILD PINK and PINK LADY could not therefore be said to be dissimilar. The Board of Appeal's decision on that basis was therefore annulled.

The opposition will therefore now have to be looked at again but on the basis that there is a level of similarity between the marks. In other words, there will now have to be an assessment of whether there is a likelihood of confusion between them. The end result of the opposition is likely to be the same.

Case Ref: T-146/17