CJEU rejects fly.de TM appeal
German company FTI Touristik, which owns travel agency fly.de, has lost an appeal before the Court of Justice of the European Union (CJEU) after it opposed a trademark application by two individuals.
In a judgment issued earlier today, July 4, the court dismissed FTI’s appeal, affirming a decision by the EU General Court to uphold Harald Prantner and Daniel Giersch’s trademark application for the word ‘Fly’, in which the ‘y’ is replaced with a heart.
In 2013, Prantner and Giersch sought to register their mark in classes 16, 39 and 43 for goods and services including transportation, travel organisation, catering services and pamphlets.
The following year, FTI filed an opposition to the registration, arguing that the mark would infringe and cause confusion with its earlier trademark for the phrase ‘fly.de’, which is written in blue, italicised font, on a yellow background.
FTI’s mark is registered in classes 16, 39, 41 and 43 for services such as booking travel, education, and recreation services.
In its appeal, FTI challenged the assessment that there was no phonetic similarity between the applied-for mark and the earlier mark, because the earlier mark also contained the word element ‘.de’.
In addition, FTI argued that the figurative element of the applied-for mark would be interpreted as a ‘y’ and therefore would cause confusion with its earlier trademark.
But, the court agreed with the General Court that it was not likely that the relevant public would detect the letter ‘y’ in the figurative element of the applied-for mark.
It said that even in the event that the consumer does identify the letter ‘y’ in the symbol of the heart, the phonetic similarity between the word ‘fly’ in both marks, would be “attenuated by the presence of the word element ‘.de’ in the earlier mark”.
In its conclusion, the court dismissed FTI’s appeal and ordered it to pay the costs.
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