Gerecht EU: Elixers

B9 10981. Gerecht EU, 23 maart 2012, zaak T-157/10, Barilla tegen OHIM/  Brauerei Schlösser.

Merkenrecht. EU-oppositie o.g.v. het Duitse woordmerk "Elixeer"  tegen de inschrijving  van het woordmerk ALIXIR (non-alcoholische dranken,  energy drinks, bier). De oppositie wordt toegewezen. Nogmaals: Ook zwak onderscheidend vermogen is onderscheidend vermogen:

28. Granting excessive importance to the fact that the earlier mark has only a weak distinctive character would have the effect that the factor of the similarity of the marks at issue would be disregarded in favour of the factor based on the distinctive character of the earlier mark. The result would be that where the earlier mark is only of weak distinctive character a likelihood of confusion would exist only where there was a complete reproduction of that mark by the mark applied for, whatever the degree of similarity between the signs at issue. Such a result would not, however, be consistent with the very nature of the global assessment which the competent authorities are required to undertake by virtue of Article 8(1)(b) of Regulation No 40/94.

29. In the present case, it is appropriate to confirm the assessment made by the Board of Appeal to the effect that the earlier mark does have a weak distinctive character because it can be differentiated, albeit only slightly, from the German word ‘Elixier’, which has a laudatory connotation as regards drinks.

30. In those circumstances, the Board of Appeal was correct in finding that, given the fact that the goods covered by the signs at issue are identical or highly similar and in view of the similarity between those signs, it had to be found that there was a likelihood of confusion.

Lees het arrest hier.