LINDENHOF and LINDERHOF marks are not confusing

In Lidl Stiftung & Co KG v Office for Harmonization in the Internal Market (OHIM), the European Court of First Instance (CFI) has upheld the OHIM's decision to register LINDENHOF as a Community trademark for non-alcoholic drinks despite the opposition by the owner of the earlier German mark LINDERHOF TROCKEN for sparkling wines.

REWE-Zentral AG applied to the OHIM to register LINDENHOF for, among other things, "beers, mixed drinks containing beer, mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices" in Class 32 of the Nice Classification. Discount supermarket chain Lidl Stiftung & Co KG opposed the application on the basis of its earlier German trademark LINDERHOF TROCKEN for sparkling wines in Class 33.

The OHIM Opposition Division upheld the opposition with regards to beers and mixed drinks containing beer. However, it rejected the remainder of the opposition. Lidl appealed but the OHIM Board of Appeal dismissed the action, arguing that in spite of great aural similarity between the marks at issue, the difference between the goods to which they apply precluded any likelihood of confusion on the part of the target public.

On further appeal, the CFI upheld that conclusion. Firstly, the CFI considered inadmissible Lidl's argument that its LINDERHOF TROCKEN mark enjoyed a high level of distinctiveness as that argument had not been put forward before the OHIM.

Secondly, the CFI examined whether there exists a likelihood of confusion between LINDENHOF and LINDERHOF TROCKEN among the public in Germany - the territory in which the earlier trademark is protected. Following the judgment of the European Court of Justice in Canon, the CFI considered that the factors to take into account to assess the similarity of the goods in question were, among other things:

• the nature of the goods;
  
  
• their intended use;
  
  
• their method of use; and
  
  
• whether they are in competition with each other or are complementary.

The CFI concluded that sparkling wines on the one hand and non-alcoholic drinks on the other are more dissimilar than they are similar. Although the CFI considered the marks themselves to be similar, it held that the consumer - being not the hurried and superficial member of the public but the average, reasonably well-informed and reasonably observant and circumspect consumer - will not believe that LINDENHOF for non-alcoholic drinks and LINDERHOF TROCKEN for sparkling wines have the same commercial origin.

Florian Traub, Bardehle Pagenberg Dost Altenburg Geissler, Munich