Een beroep ziet slechts op rechtsvragen

B9 11618. Hvj EU, 6 september 2012, C-327/11 P, United States Polo Association tegen OHIM.

Merkenrecht. Arrest van het Hof van Justitie in EU-oppositieprocedure o.g.v. het Spaanse woordmerk POLO-POLO tegen de inschrijving van het woordmerk U.S. POLO ASSN voor klasse 24, textiel. Het Hof oordeelt dat het Gerecht EU op juiste gronden heeft geoordeeld dat er inderdaad sprake was van verwarringsgevaar tussen de merken. Over het feitelijke oordeel van het Gerecht laat het Hof zich vanzelfsprekend niet uit.

46. However, in paragraphs 30 and 31 of Medion, the Court held that, beyond the usual case where the average consumer perceives a mark as a whole, it is quite possible that in a particular case an earlier mark used by a third party in a composite sign including the name of the company of the third party still has an independent distinctive role in the composite sign, without necessarily constituting the dominant element. In such a case, the overall impression produced by the composite sign may lead the public to believe that the goods or services in question come, at the very least, from companies which are linked economically, in which case the likelihood of confusion must be held to be established.

(…) 50. Admittedly, the General Court found, in paragraph 38 of the judgment under appeal, in its visual comparison of the signs at issue, that the word ‘POLO’ has an independent distinctive role in the mark applied for, when considered overall, and that, therefore, the relevant public is in a position visually to recognise the mark applied for by the element that it has in common with the earlier Community mark.

51. However, contrary to United States Polo’s claim, the General Court’s finding in paragraph 38 of the judgment under appeal does not show that it disregarded the principles laid down by the Court of Justice in Medion. In that paragraph, far from taking the view that the circumstances of the present case constituted a particular case such as that referred to in paragraph 30 of Medion, the General Court merely pointed out that the element ‘POLO’ had more distinctive character in the word sign applied for, and had an impact on the visual similarity of the signs at issue, when considered overall.

52. It follows, first, that, despite its finding in paragraph 38 of the judgment under appeal, the General Court did not apply the principles laid down in Medion concerning the independent distinctive role that an element may have in a mark and, secondly, that it did indeed carry out an overall assessment of the marks at issue, taking into account all factors relevant to the circumstances of the present case.

Lees het arrest hier.