Product similarity issues clarified by Supreme Court

In Manuel J Monteiro & Ca Lda v MULTIBRÁS Electrodomésticos SA (Case RV727/05-2, February 19 2007), the Portuguese Supreme Court has confirmed certain principles as regards the similarity of products when assessing likelihood of confusion.

MULTIBRÁS Electrodomésticos SA applied to the Portuguese Industrial Property Institute (INPI) to register the mark CONSUL for electric refrigerators, air conditioners, clothing driers and cookers. INPI refused the application on the grounds that the mark was confusingly similar to the earlier mark CONSUL PORTUGAL owned by Manuel J Monteiro & Ca Lda for heating apparatus, heaters, hairdryers, ventilation apparatus and freezers.

On appeal, the Commercial Court of Lisbon and the Court of Appeals of Lisbon confirmed INPI's decision. MULTIBRÁS appealed to the Portuguese Supreme Court.

MULTIBRÁS stated that although it accepted that there was similarity between electric refrigerators and freezers, there was no similarity between freezers and the other products set out in its application, namely air conditioners, clothing driers and cookers. The Supreme Court dismissed the appeal and upheld the previous decisions.

The court established that in circumstances in which two parties are using similar or identical marks a likelihood of confusion may occur not only where each parties' goods or services have close characteristics and identical purposes, but also where the goods or services are different but have identical or similar purposes.

In the case at hand, the court stated that while it was correct to say that freezers have a different function from products such as air conditioners, on a general level both sets of goods fell within the global classification of electric domestic appliances.

Gonçalo Moreira Rato, Moreira Rato & Associados, Lisbon