"Seven" marks considered to be different by the EUIPO

In December 2014, Shenzhen Jiayz Photo Industrial Ltd ("the Applicant") filed an application for an EU figurative mark (above left) covering goods in class 9. Seven Spa ("the Opponent") opposed the application based on its earlier trade mark also covering identical goods in class 9 (above right)

The Opposition Division rejected the opposition for all the goods concerned. Seven Spa filed a notice of appeal and the First Board of Appeal of EUIPO found a likelihood of confusion between the marks at issue. The Applicant then appealed to the General Court.

Firstly, the Court noted that, according to settled case-law, the likelihood of confusion must be assessed globally, according to the relevant public's perception of the signs and the goods and services in question. There are two cumulative conditions that must exist in order positively to find a likelihood of confusion:

• the marks in question need to be identical or similar, and
• the goods and services covered by the mark at issue must also be identical or similar.

For this reason, when the signs are different, even if there is a high degree of similarity between the goods and services, it is not possible to configure a likelihood of confusion. On the other hand, when signs are similar, the existence of the likelihood of confusion cannot be excluded even if there is a low degree of similarity between the goods and services.

In the present case, the Court noted that the Board of Appeal was right to find that the goods covered by the two marks were identical. As the Applicant did not provide evidence to show that the consumers were particularly attentive when purchasing the goods at issue, the Court considered the relevant public as having an average level of attention and therefore perceiving the mark as a whole entity without engaging in a detailed analysis of the various details of the mark.

Regarding the comparison of the signs, the Court clarified that the global assessment of the likelihood of confusion must be based on the overall impression given by the marks in question, considering the average level of attention of the relevant public.

In relation to the word "seven", the Court noted that it is clear from the case law that if the number chosen does not indicate specific characteristics of the goods and services covered by the mark, it cannot automatically be concluded that the sign is non distinctive.

In this case the word "seven" has a normal level of distinctive character in relation to the goods concerned. Moreover, the word element attracts more attention than the figurative elements, which only have an ornamental function.

In relation to the number "7", the Court noted that it is placed at the beginning of the Earlier Mark in a detached position. Therefore both the word element "seven" and the number "7" have an independent distinctive role which need to be considered in assessing the overall impression of the marks at issue.

Regarding the phonetic similarity, the Court noted that the marks in question will generally be perceived visually prior to the purchase, so the visual aspect plays a greater role in the assessment of the similarity.

For these reasons, the overall impression of the two marks is very different. Hence, the Board of Appeal made an error of assessment in finding a certain degree of similarity between the marks.

In conclusion, in the absence of a minimum degree of similarity between the signs, it is not possible to configure a likelihood of confusion between the marks. Hence the General Court annulled the decision of the Board of Appeal.

Case Ref: T-339/17