Confused about confusion? Recent EU General Court Decisions on similarity of marks

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What happened?

A series of recent decisions illustrates the threshold the EU General Court applies in determining whether marks are considered similar. In each of the following cases, the marks listed were held to be similar to an average or high degree (the earlier mark being cited first and the later mark second).

While the EU General Court (and EUIPO) must consider how the marks will be pronounced and perceived in relevant languages across the EU, this factor was only expressly mentioned in the SKINOREN case. In other words, it does not seem that these marks were deemed similar due to the way they are pronounced or understood in particular member states.

Since the goods and/or services in question were either identical or similar, there was a finding of a likelihood of confusion in each case. This was so even though, in some cases, the relevant public was deemed to display a higher than average level of attention, which should reduce the likelihood of confusion. For example, in Cara Therapeutics v EUIPO (the AROSUVA case), which concerned pharmaceutical products in class 5, the relevant public was deemed to display a higher than average level of attention. Nonetheless, there was a finding of a likelihood of confusion given the identity of goods and average degree of similarity between the marks.

Even where the marks are deemed similar to a low degree, there can be a finding of a likelihood of confusion. But, this is generally only the case where the earlier mark has an enhanced distinctive character. Thus, in the recent Albéa Services v EUIPO case, the ALBEA figurative mark (see below) was deemed confusingly similar to an earlier registration for Balea for cosmetics in class 3. Although the marks were only visually and aurally similar to a low degree (and it was not possible to make a conceptual comparison), there was a likelihood of confusion given the identity of the goods and the earlier mark's enhanced distinctive character.

Conversely, the fact that an earlier mark has a low degree of distinctiveness is not always sufficient to avoid a finding of a likelihood of confusion. This was so in the Diego Kereskedelmi és Szolgáltató Kft v EUIPO case on the STEP mark. Here, the General Court held that the STEP word mark and the WOOD STEP LAMINATE FLOORING figurative mark (see below) are confusingly similar (for identical and similar goods/services) despite the fact that the earlier mark has a weak distinctive character.

What can we take from this?

Arguably, the threshold for deeming marks to be similar is relatively low at the General Court. The fact that the Court must consider the position from the viewpoint of the average consumer across all relevant EU member states can be - although is not always - a factor in this.

The fact that the average consumer pays a higher-than-average level of attention might not always be sufficient to avoid a finding of a likelihood of confusion.
There can be a likelihood of confusion even where the marks are considered similar to a low degree. This is particularly so where the earlier mark has an enhanced distinctive character through use and the goods/services in question are highly similar or identical.
The fact that an earlier mark has a low degree of inherent distinctiveness is not always sufficient to avoid a finding of a likelihood of confusion.

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