Marchio chiesto in registrazione (per elettronica e gaming digitale):
Anteriorità opposta (per prodotti parzialment simili):
Il Tribunale UE 19.04.2023, T-491/22, Zitro International Sàrl c. EUIPO-a-gaming s.r.o., conferma l’appello amministrativo nel senso che non c’è confondibilità
In particolare non c’è somiglianza visuale, §§ 40 ss.
<< 45 In the present case, it must be stated that the signs at issue share certain features, that is, a central element which includes, inter alia, an open smiling mouth showing teeth, large eyes, a top hat, two arms wearing gloves and two legs wearing shoes. In addition, they are represented in the same colours – white, grey and black.
46 Nevertheless, it must be stated, similarly to EUIPO, that the features mentioned in paragraph 45 above are represented differently in each of the signs. The central element of the sign applied for is an anthropomorphic sphere, while that of the earlier mark is an ovoid. Moreover, aside from the open mouth, the features of the central element of each of the signs are not the same. While the sign applied for contains two wide-open eyes and eyebrows, the earlier sign has a single eye and does not have visible eyebrows. The hats situated over the central elements of the signs at issue are also distinct. Whereas the hat in the sign applied for is of average size, tipped to the left and contains an uppercase ‘b’, the hat in the earlier sign is large, tipped to the right, contains an ‘s’ or dollar sign and some banknotes. Differences can also be established in the position of the arms and proportion of the legs in relation to the central element of each of the signs at issue. Although the sign applied for is represented with straight arms and shorter legs in relation to the central element, the earlier sign is made up of one bent arm and another arm resting on a cane, and legs of the same length as the central element.
47 In the light of those assessments, the Court finds that the overall impression produced by the signs at issue is so different that the relevant public will not establish a link between those signs on the ground that they share certain features and the same colours. They are two fantasy figures stylised differently, that is, on the one hand, a happy figure in the shape of a ball with wide-open eyes, straight arms and short legs and, on the other hand, a figure in the shape of a one-eyed, slightly deformed face with one bent arm and another arm resting on a cane, and legs of the same length as the central element.
48 Contrary to the applicant’s claim, in paragraphs 15 and 16 of the contested decision, the Board of Appeal only described the signs at issue before carrying out a visual, phonetic and conceptual comparison of the signs. The visual comparison of those signs was carried out in paragraph 17 of that decision, in which the Board of Appeal specified that that the signs at issue shared a central part resembling an imaginary face with two legs, two arms and a hat, but that the overall impression given by those signs was very different. Consequently, the applicant’s arguments relating to the fact that paragraphs 15 and 16 of the contested decision take account of certain features or details of the signs at issue must be rejected.
49 The same applies to the applicant’s argument that the Board of Appeal found that the overall impression given by the signs at issue was very different, although it had specified that those signs shared their most relevant aspects, which drew the attention of the relevant public. In that connection, it is sufficient to note that, as is apparent from paragraph 17 of the contested decision, the Board of Appeal merely observed that, despite the fact that the signs at issue shared certain features, their overall impression was very different. Accordingly, the Board of Appeal did not in any way find that the signs at issue shared the most relevant aspects which drew the attention of the relevant public.
50 Regarding the applicant’s argument that, in essence, the features shared by the signs at issue concern the central element and are the most relevant elements, creating a first impression of the signs at issue without engaging in an analysis of their details, and that those signs are represented in the same colours, it must be observed that, as is apparent from paragraphs 46 and 47 above, those features are represented differently, thereby creating a different overall impression given by the signs at issue. Accordingly, even if the consumer does not memorise details, he or she will be able to identify the differences between the signs and, to that extent, will not establish a link between the marks at issue.
51 Regarding the applicant’s argument that the Board of Appeal failed to take account of the arguments in paragraphs 14 to 19 of the application, directed against the decision of the Opposition Division, it should be borne in mind that the Board of Appeal cannot be required to provide an account that follows exhaustively and one by one all the lines of reasoning articulated by the parties before it; the reasoning may therefore be implicit, on condition that it enables the persons concerned to know the reasons for the Board of Appeal’s decision and provides the competent Court with sufficient material for it to exercise its power of review (see, to that effect, judgment of 9 July 2008, Reber v OHIM – Chocoladefabriken Lindt & Sprüngli (Mozart), T‑304/06, EU:T:2008:268, paragraph 55 and the case-law cited). It is apparent from paragraphs 21 to 26 of the application that the applicant was able to understand the reasons for the Board of Appeal’s finding that the signs at issue were not similar visually.
52 Therefore, the Court finds that the Board of Appeal did not err in its assessment when it observed that the signs at issue were different visually>>.