16 November 2018Trademarks

EU court hands German company defeat in software TM clash

The EU General Court yesterday dismissed a trademark appeal from a German software company.

By doing so, the court upheld a previous decision by the European Union Intellectual Property Office (EUIPO) that had rejected Haufe-Lexware’s opposition to an applied-for trademark.

In March 2015, China-based Leshi Holdings applied to register ‘Leshare’ as an EU trademark for classes 9 (including computer software) and 35 (including online advertising).

Leshi, which is the parent company of Chinese conglomerate LeEco, operates businesses in areas such as consumer electronics, film production, video streaming and real estate.

Haufe-Lexware, a Germany-based company that develops business software, opposed the mark later that year. Haufe-Lexware’s ‘Lexware’ trademark, which covers classes 9 and 35, was cited in opposition.

However, in August 2016, the EUIPO’s Opposition Division rejected Haufe-Lexware’s opposition.

The division considered that, despite the identical nature of the goods and services in question, there was no likelihood of confusion between the trademarks because the differences between the signs were sufficient to outweigh their similarities in the perception of the relevant public.

Haufe-Lexware appealed against the decision, but in June 2017, its opposition was dismissed again, this time by the EUIPO’s Fourth Board of Appeal.

The appeal board found that while the goods and services were identical and there were visual and phonetic similarities between the trademarks, the differences (in particular on a conceptual level) were sufficient to rule out a likelihood of confusion.

Again, Haufe-Lexware appealed against the decision. But yesterday, the General Court dismissed the appeal.

The EUIPO had found that the relevant public would be the general public and professionals with specific knowledge of information technology, who would pay average to high attention when purchasing these goods.

But Haufe-Lexware argued that the some of the goods concerned, namely computer hardware and software (in class 9), are everyday consumer goods purchased by average consumers whose level of attention is, at most, average.

In rejecting Haufe-Lexware’s plea, the court found that, even if the relevant public for the class 9 goods has an average level of attention, the services in class 35 are directed at professionals with a higher level of attention.

The German company argued that the trademarks are highly visually similar, because they share the same initial and final letters, and that the difference between the middle letters is of only minor importance because the letters are “hidden in the middle” of the marks.

Haufe-Lexware also claimed that the trademarks are highly phonetically similar, and that the appeal board had erred in finding the trademarks were conceptually different.

“The applicant first of all maintains that the signs ‘Lexware’ and ‘Leshare’ do not convey any clear conceptual meaning, so that a conceptual comparison between them is not possible,” said the court.

But again, the General Court backed the EUIPO, finding that the trademarks had, at most, average visual and phonetic similarity.

“Since the sign ‘Lexware’, analysed in the context of the goods and services at issue, conveys a meaning for the relevant public, whilst the sign ‘Leshare’ is not only meaningless but will also, at first sight, appear strange and unusual for the relevant public, those signs must be considered conceptually dissimilar,” added the court.

The court dismissed the action and ordered Haufe-Lexware to pay the costs.

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