Supreme Court precedent rejected in MOBILIX Case

Germany

In Les Editions Albert René v Hauser (29 U 4096/02), the Munich Court of Appeal has reversed a lower court decision, finding that the marks OBELIX and MOBILIX are confusingly similar. Refusing to apply a Supreme Court ruling, the appellate court found that it is the phonetic similarity of the marks, rather than their meaning, that created the likelihood of confusion.

Albert René owns a Community trademark for OBELIX in relation to computers and computer programs. Werner Hauser owns the German trademark MOBILIX for computer hardware, software and telecommunication services. Albert René sought an injunction to prevent Hauser from using his mark on the grounds that MOBILIX is confusingly similar to OBELIX. The Munich District Court ruled in Hauser's favour, finding that the marks were not confusingly similar. Albert René appealed.

The appellate court reversed the lower court decision. It refused to apply a German Supreme Court ruling stating that terms that sound similar but are perceived by a majority of the public as having different meanings are not confusingly similar. The appellate court reasoned that MOBILIX is made of the term 'mobil' (ie, 'mobile') and the suffix '-ix', which is widely used for computer software and related services within the UNIX operating system environment. The appellate court emphasized that, as such, MOBILIX constitutes an independent lingual creation that not everyone understands. Therefore, it is the high degree of phonetic similarity between the two trademarks that must prevail, resulting in a finding of likelihood of confusion.

Hauser may appeal to the German Supreme Court.

Fabian Seip and Florian Schwab, Boehmert & Boehmert, Munich

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