Minor differences between short marks will be given weight

Denmark

In Staff A/S v Nué I/S (Case V-84-09, November 19 2010), the Danish Maritime and Commercial Court in Copenhagen has held that Staff A/S' rights in the trademark NÜ had not been infringed.

Danish clothing company Staff is the proprietor of the word mark NÜ, registered in 2005 for clothing, footwear and headwear in Class 25 of the Nice Classification, as well as retail and wholesale services for clothing in Class 35. Further, the company is the proprietor of the figurative mark NÜ BY STAFF-WOMAN, based on use since 2005:

Staff also owns the domain name 'nü.dk', and registered Nü A/S as the company's secondary name in 2005. The word 'Nü' on its own has never been used as a mark by Staff, as the word forms an integral part of the name Nü by Staff-Woman in most of Staff's marketing material.

Danish company Nué I/S has distributed exclusive fashion articles under the mark NUÉ since 2006. Further, the company markets and sells articles on 'nuenotes.com'. The following logo is used on Nué's website, as well as on the company's shop front :

Staff claimed that Nué's use of the sign NUÉ for clothing was infringing its trademark rights.

The court stated initially that trademarks consisting of only two letters have a lower degree of distinctiveness. The mere fact that Staff uses the German umlaut above the letter 'U' did not, in itself, contribute to the distinctive character of the mark. The court also pointed out that even minor differences between two short words will be considered to be important when considering an alleged infringement - especially if the mark that is alleged to be infringed is not well known or well established on the market.

In the present case, the court did not find that the trademark NÜ was well known or well established as a trademark.

When comparing the two marks in question, the court attached importance to the fact that:

  • 'Nü' is a monosyllabic word, while 'Nué' is a two-syllable word; and
  • the words have only the first letter in common.

As such, there was no visual similarity between the marks. Furthermore, the court found that the marks were not similar phonetically, as NÜ is pronounced 'ny', while NUÉ is pronounced with a stress on the 'é'. Finally, there was no conceptual similarity, as neither of the marks had a clear meaning.

As a result of the above, the court found that there was no risk of confusion between the marks and that no infringement of Staff's trademark rights had occurred.

Nina Ringen, Plesner, Copenhagen

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