Average consumers particularly attentive when buying cars
The County Court of Harju has dismissed an opposition against the registration of the trademark TIGGO on the grounds that there was no likelihood of confusion with the earlier trademark TWINGO (Decision 2-13-31249, October 16 2013).
The decision came into force on November 22 2013. The names of the plaintiff and of the defendant were hidden.
On April 13 2010 the defendant applied to register the word mark TIGGO in Class 12 of the Nice Classification (International Registration No 1037590). The plaintiff opposed the application based on its prior word mark TWINGO (National Registration No 11882). The plaintiff stated that the trademarks TWINGO and TIGGO were almost identical visually and phonetically. It contended that the application should be refused under Article 10(1)(2) of the Estonian Trademark Act because:
- the mark applied for was highly similar to its earlier trademark, which is registered for identical or similar goods; and
- there was a likelihood of confusion.
Further, the plaintiff was of the opinion that the application should be refused on the grounds that registration of the mark could take unfair advantage of, or be detrimental to, the distinctive character or the repute of the well-known TWINGO mark under Article 10(1)(3). The plaintiff argued that the market share of the Twingo cars was approximately 1% in Europe and that 140 cars had been sold in Estonia between 2007 and 2010. The plaintiff claimed that the coexistence of the trademarks on the market would mislead consumers.
The defendant argued that there was no likelihood of confusion since the words ‘twingo’ and ‘tiggo’ were different when viewed as a whole. The defendant also pointed out that the pronunciation of the marks was different. Further, the defendant was of the opinion that the average consumer normally perceives a mark as a whole, and does not proceed to analyse its various components. According to the defendant, consumers in Estonia were aware of the trademark TIGGO: the first article about the Tiggo car was published in Estonia in 2005 and the Tiggo cars have been on the market since 2007. Moreover, the plaintiff had not submitted any evidence during the proceedings to show that consumers had been misled. Finally, the defendant argued that there was no likelihood of confusion in a real market situation because TWINGO is used for small cars, while TIGGO is used for crossovers.
The County Court of Harju dismissed the opposition, finding that the trademarks at issue were dissimilar, even though there were some similarities between them. In particular, the court found that the trademarks differed mainly from a phonetic point of view. The court accepted the argument that the trademark TWINGO had an average-to-high distinctive character. Although the goods were considered to be of a similar kind, the court found that the trademarks at issue were not similar as the trademark used for a certain car is usually connected with the producer of that car. The average consumer purchases a car only after a careful examination; therefore, in a market situation, consumers would not be confused, especially as the types of goods were different (small cars v crossovers).
Anneli Kapp, Käosaar & Co, Tartu
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