marchio sub iudice: COPAL TREE (denominativo) per alimenti e bevande
Anteriorità opposta (merceologicamente sovrapponibile):
Registrazine nenegata nei due gradi amministrativi.
Decide confermando Trib. UIE 28/09/2022, T-572/21, Copal Tree Brands, Inc. c. EUIPO+1 .
Elemento predmoinante (confermto dal T.):
” 25 In paragraph 41 of the contested decision, the Board of Appeal took the view that the earlier mark consisted of two co-dominant elements and that both the figurative element and the word ‘compal’ were distinctive and would attract the attention of the relevant public. It stated that the figurative element, because of its size and eye-catching graphic design, did not play a secondary or merely descriptive role within the mark. Nonetheless, in the Board of Appeal’s view, the word element of the earlier mark plays a ‘somewhat more important’ role within that mark, given that it is the only element of that mark that can be pronounced. As regards the mark applied for, the Board of Appeal took the view that it was also composed of two co-dominant elements, namely the words ‘copal’ and ‘tree’, but that it was to the first word, namely ‘copal’, that the relevant public would pay more attention.
26 In addition, the Board of Appeal was of the opinion, in paragraph 42 of the contested decision, that the signs at issue were both fully distinctive and that neither the figurative element of the earlier mark nor the word ‘tree’ of the mark applied for could be regarded as weakly distinctive elements merely referring to the possible ecological characteristics of the food products at issue”.
Somiglianza visiva di medio grado, § 41, e così quella fonetica, § 47 .
Molto simile invece è l’aspetto fonetico, § 56.
Stanti questi presupposti, difficile evitare il giuidizio di confondibilità, che infatti arriva:
<< 61 In that regard, first, as regards the similarity of the signs at issue, it should be noted that, as stated in paragraphs 41, 47 and 56 above, the Board of Appeal did not make an error of assessment in finding that those signs were visually and phonetically similar to an average degree and conceptually similar to a high degree. Accordingly, contrary to what the applicant claims, those similarities are not too weak.
62 Secondly, as regards the distinctive character of the earlier mark, the parties do not dispute that it must be regarded as normal, as the Board of Appeal found.
63 Thirdly, as noted in paragraphs 20 to 22 above, the goods and services at issue are in part identical and in part similar and the relevant public will have an average level of attention.
64 In the light of all those factors, the Board of Appeal did not make an error of assessment in concluding that there was a likelihood of confusion.
65 In the light of the foregoing, the single plea in law alleging infringement of Article 8(1)(b) of Regulation 2017/1001 must be rejected and, consequently, the action must be dismissed in its entirety, without there being any need to rule on the admissibility of the head of claim seeking annulment of the Opposition Division’s decision of 2 June 2020.>>