Average consumer of computer products is familiar with English terms
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In NEC Display Solutions Europe GmbH v Office for Harmonisation in the Internal Market (OHIM) (Case T-501/08, September 23 2011), the General Court has found that the Fourth Board of Appeal was correct in upholding an opposition filed by C More Entertainment AB against the registration of the figurative trademark SEE MORE by NEC Display Solutions Europe GmbH under Article 8(1)(b) of the Community Trademark Regulation (207/2009).
On September 20 2004 NEC Display filed an application for the registration of the following figurative sign as a Community trademark in Class 9 of the Nice Classification for "computers and computer accessories, namely computer monitors":
On July 18 2005 C More filed an opposition based on its earlier Danish and Finnish word marks CMORE for "optical apparatus and instruments; data processing equipment and computers" in Class 9. On June 29 2007 the Opposition Division of OHIM upheld the opposition for all the goods at issue.
By decision of August 28 2008 the Fourth Board of Appeal of OHIM found that there was a likelihood of confusion between the trademark applied for and the earlier marks for goods in Class 9. In particular, the board found that the relevant public consisted of the general public of Denmark and Finland, who generally displayed an average level of attention. Further, the board stated that the goods covered by the earlier marks were identical to those covered by the trademark application. Turning to the comparison of the marks, the board found that there was a low degree of visual similarity, since they did not contain the same number of letters, and the mark applied for comprised a stylised depiction of a screen represented by a blue casing surrounding the word 'see'. Phonetically and conceptually, however, the mark SEE MORE was identical to the earlier CMORE marks. Consequently, the board decided that a likelihood of confusion between the marks could not be excluded.
The General Court first stated that the board was correct in holding that the relevant public was composed of average consumers reasonably well informed, observant and circumspect, limited to the territory of Denmark and Finland, in which the earlier marks were registered.
With regard to the comparison of the goods, the General Court stated that all the relevant features of the relationship between them should be taken into account - in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. As the earlier trademarks were registered for certain goods in Class 9 (in particular, computers, which also formed the subject matter of NEC Display's application, together with computer accessories), the General Court stated that the goods were complementary, as there was a close connection between them in the sense that one was indispensable or important for the use of the other. Consequently, consumers could think that responsibility for the production of those goods or provision of those services lies within the same undertaking.
Turning to the comparison of the marks, the General Court noted that, visually, the marks had a different length, and that the mark applied for included figurative elements. Despite these differences, the General Court pointed out that the word 'more' was present in the final part of the two marks at issue. Therefore, the board had correctly found that there was a low degree of similarity.
As the average consumer was familiar with the use of English terms in the area of computer products, and knowledge of English is widespread in Denmark and Finland, the General Court stated that, phonetically, the terms 'cmore' and 'see more' would be pronounced according to English phonetics. Even if the verbal element of the mark applied for could be considered to be descriptive, the relevant public, when referring to the mark, would pronounce exclusively its word element. Therefore, the board was correct in finding that the marks were phonetically identical.
With regard to the conceptual comparison, the General Court noted that, as the marks are linked to computers and computer accessories, the marks CMORE and SEE MORE would be understood as 'to see more'. Since the two marks contained the word 'more', and the letter 'C' of the earlier marks would probably be associated with an abbreviation or misspelling of the verb 'to see' in English, the board had correctly considered that the relevant public would perceive the signs at issue as 'see more'.
The General Court thus stated that the board was right to conclude that there was a low degree of visual similarity between the marks at issue and that they were phonetically and conceptually identical.
After an overall assessment, and taking the distinctive character of the earlier marks into account, the General Court stated that the board was right to conclude that there was a likelihood of confusion between the marks under Article 8(1)(b) of the regulation.
Nina Ringen, Plesner, Copenhagen
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