Single character found to differentiate marks

European Union
In V&S Vin & Sprit Aktiebolag v Intershoe Inc (Opposition B 1 271 560, January 21 2010), the Opposition Division of the Office for Harmonization in the Internal Market has held that there was no likelihood of confusion between the trademarks V&S and VS.
On February 28 2007 Swedish company V&S Vin & Sprit Aktiebolag filed an application to register V&S as a Community trademark for goods and services in Classes 1, 14, 16, 18, 21, 24, 25, 30, 33, 39, 41 and 43 of the Nice Classification. US company Intershoe Inc lodged an opposition based on its earlier Community trademark VS for goods in Classes 9, 14 and 25. The opposition was based on “jewellery, watches and watchbands” in Class 14, and was directed at “clocks and watches, cufflinks, tiepins, pins (of precious metal)”, also in Class 14.
The Opposition Division found that the goods were identical and similar. However, it held that there was only a low degree of similarity between the marks.
Visually, the Opposition Division found that the difference between the marks - the symbol '&' - would be perceived by consumers given the short length of the marks, even if they coincided in the letter 'V' at the beginning and the letter 'S' at the end. From a phonetic point of view, the Opposition Division held that the rhythm and intonation of the marks were different, as the symbol '&' in the mark applied for would be pronounced in the languages of the European Union. No conceptual comparison was carried out in light of the fact that the marks had no meaning in any of the European languages.
Turning to the overall assessment of the marks, the Opposition Division pointed out that the "clocks and watches" covered by the V&S mark were for everyday use. Therefore, the awareness of the relevant public would be that of an average consumer who is reasonably well-informed, observant and circumspect. However, "cufflinks, tiepins, pins (of precious metal)" were expensive and rather exclusive and, therefore, the relevant consumers would have a higher level of attentiveness.
The Opposition Division pointed out that the shorter the sign, the more easily the public will be able to perceive all of its elements. Small differences are more likely to create a different overall impression. In contrast, the public is less in a position to identify differences between long marks.
The Opposition Division concluded that due to the shortness of the marks, the differences between the signs would be clearly perceived and kept in mind by the relevant public. Therefore, there was no likelihood of confusion.
The decision is in line with EU case law, under which short trademarks - and especially those composed of two letters - enjoy only a restricted scope of protection. Arguably, this case was borderline, because the difference between the marks was a symbol, and not an additional letter. The Opposition Division might have considered that consumers, when seeing the V&S mark, would have kept in mind the letters 'VS'. However, the high level of care of the consumers led the Opposition Division to find that the marks were dissimilar.
Franck Soutoul and Jean-Philippe Bresson, INLEX IP EXPERTISE, Paris

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