CENTRIXX held to be confusingly similar to SENSIXX

European Union
In Royal Appliance International GmbH v Office for Harmonization in the Internal Market (OHIM) (Case T-446/07, September 15 2009), the Court of First Instance (CFI) has held that there was a likelihood of confusion between the trademarks CENTRIXX and SENSIXX.
In 2003 German company Royal Appliance International GmbH filed an application for the registration of CENTRIXX as a Community trademark for goods in Class 7 of the Nice Classification (including vacuum cleaners). BSH Bosch und Siemens Hausgeräte GmbH filed an opposition based on its German registration for the trademark SENSIXX for goods in Classes 7, 9, and 11.
The Opposition Division of OHIM rejected the opposition, holding that:
  • the relevant public was particularly attentive; and
  • the differences between the marks were sufficient to avoid a likelihood of confusion.
BSH appealed. The Fourth Board of Appeal of OHIM annulled the decision of the Opposition Division, considering that:
  • the relevant public consisted of the average German consumers; and
  • a likelihood of confusion between the marks could not be excluded.
Royal Appliance appealed to the CFI. It requested that the proceedings be stayed until the German courts issued a decision in its action for the cancellation of the SENSIXX mark on the grounds of non-use. The CFI refused to stay the proceedings, holding that:
  • the issue of non-use of the SENSIXX mark was not presented before the board; and
  • the CFI could not take the decision of the German courts into account in examining the lawfulness of the board's decision.
With regard to the likelihood of confusion between the marks, the CFI took great care in defining the relevant public. The CFI pointed out that the goods at issue are used for cleaning, washing and cooking, and are sold mainly in supermarkets. Although these goods are not bought on daily basis and have a long lifetime, they can be purchased by anybody. It was irrelevant that some of the goods concerned are expensive and used mainly by professionals. The CFI thus concluded that the relevant public consisted of the average German consumers.
The CFI further held that the marks CENTRIXX and SENSIXX were similar from a visual point of view, as they had the same length, shared the same vowels ('E' and 'I') and had the same 'ixx' ending. From a phonetic point of view, the marks were considered to be highly similar, as the first and final syllables were identical. Royal Appliance argued that from a conceptual point of view, CENTRIXX evoked the words 'centre' and 'central', while SENSIXX brought the word 'sensitive' to mind. The CFI disagreed, holding that both marks would be perceived as invented terms.
The appeal was thus dismissed and the application for the registration of CENTRIXX was rejected.
Arguably, the CFI reached the correct decision: because the invented terms 'sensixx' and 'centrixx' have no particular meaning, consumers would not be able to distinguish the marks easily. Moreover, the original 'ixx' ending could lead consumers to believe that goods bearing the marks are part of a range of household items manufactured by the same company.
Séverine Fitoussi and Franck Soutoul, INLEX IP EXPERTISE, Paris

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