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GvEA, 7 februari 2006, zaak T-202/03. Alecansan tegen OHIM CompUSA (COMP USA).
Oppositie ouder Spaans beeldmerk Comp USA tegen CTM aanvrage beeldmerk COMP USA. Oppositie afgewezen door OHIM, geen overeenstemmende of complementaire waren en diensten. GvEA bevestigt die beslissing en stelt, ten overvloede dat nationaal recht niet van toepassing. Nederlandse versie is nog niet beschikbaar.
Waren en diensten: Thus, it is necessary to examine whether there is similarity between the following goods and services: on the one hand, the services covered by the earlier Spanish mark COMPUSA No 2 133 202, included in Class 39, namely ‘transport; packaging and storage of goods; travel arrangement’, and on the other hand the goods and services covered by the trade mark applied for COMPUSA, included in Classes 9 and 37, namely ‘Computer hardware; computer software’ and ‘Inspection and repair of electronic circuitry and components in computer hardware’.
As regards the nature of the goods and services, the contested decision rightly considers the ‘transport services’ referred to by the applicant to mean a fleet of trucks or ships used to move goods from A to B. Equally, ‘packaging and storage services’ merely means, in reality, the service whereby a company’s merchandise is put into containers for a fee. Those services are not similar to the services or the IT products offered by the intervener.
Physically sending computer software and computers bought or rented from an undertaking offering its goods by means of the internet to both consumers and professionals is merely the execution of a distance selling contract or of a service contract which is not connected to transport services. Consequently, sales by internet and goods transportation services are by no means complementary in nature.
Toepasselijk recht: The applicant submits that, since the public targeted by the two marks consists of average Spanish consumers and the relevant market is the Spanish market, the Spanish case-law concerning the likelihood of confusion between the signs should have been taken into account by the Board of Appeal. Under that case-law the identity of the names of the two marks results in their ‘incompatibility’, even when the goods related to the signs in dispute are different, they belong to two different classes of the Nice Classification (Classes 29 and 30), and there is no relationship between them, since the likelihood of confusion on the market is evident.
Given the unitary nature of the Community trade mark, the Community trade mark regime is an autonomous system with its own set of objectives and rules peculiar to it, and applies independently of any national system. (…) As a result, OHIM cannot be bound by a decision given in a Member State according to which where the two marks are identical in name they are ‘incompatible’ even if the goods and services covered by the signs in question are different. That is so even if such a decision was adopted under national legislation harmonised with Directive 89/104. Lees het arrest hier.
