General Court backs rejection of ice cream TM opposition
The EU General Court has ruled against a Turkish chocolate company which had opposed a trademark application for an ice cream cornet.
In November 2013, Bulgarian individual Elka Zaharieva applied to register an EU trademark at the European Union Intellectual Property Office (EUIPO) for a figurative sign. The sign is made up of a cartoon rabbit holding an ice cream cornet. In bubble writing above the cartoon are the words ‘Bobo cornet’.
The goods sought in relation to the trademark fall under classes 29, 30 and 32, covering yoghurt and milk beverages, frozen yoghurt and ice cream, and non-alcoholic beverages.
This application was opposed by Şölen Çikolata Gıda Sanayi ve Ticare in February 2014, based on an earlier international registration. The earlier trademark is made up of the words ‘Ozmo cornet’ in different-coloured bubble writing. The goods and services that the trademark covers fall under class 30.
In March 2015, the Opposition Division rejected the opposition in its entirety. This prompted Şölen to file a notice of appeal with the EUIPO against the decision. The EUIPO’s Fourth Board of Appeal dismissed the appeal and ordered Şölen to pay the costs.
The decision was based on the view that the goods in question were everyday consumer goods intended for the public at large, and that the only similarity between the signs is the word ‘cornet’. Meanwhile, it said the applied-for sign’s dominant characteristic is the cartoon rabbit.
While the board said that the signs are similar from a phonetic perspective, this similarity is to a “less than average degree”. Furthermore, it was decided that the words ‘bobo’ and ‘ozmo’ have no meaning in the relevant languages, and that there was no likelihood of confusion.
Şölen sought further judgment at the General Court based on two pleas in law. First, likelihood of confusion, and second, that the Board of Appeal failed to examine the arguments put forward by Şölen.
It argued that the rabbit in the applied-for trademark ought to be given less importance and that it should be perceived as solely decorative, while the words ‘Bobo cornet’ should be perceived as the dominant terms.
The General Court disagreed with Şölen’s assessment, and said the Board of Appeal was correct to find that there is no likelihood of confusion between the trademarks.
The court decided that “the differentiating elements between the marks are such that the relevant public will not be misled as to the commercial origin of the goods in question”.
It also rejected Şölen’s argument that the Board of Appeal did not examine its facts put forward.
Accordingly, the General Court dismissed the action and ordered Şölen to pay the costs.
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