Oraal onderhandeld
GvEA, 25 juni 2008, Zipcar, Inc tegen OHIM / Canary Islands Car, SL (Nederlandse vertaling nog niet beschikbaar).
Oppositieprocedure. Aanvraag gemeenschapsmerk woordmerk ZIPCAR, Oppositie o.g.v. nationaal woordmerk CICAR. Weinig interessante zaak. Verwarringsgevaar aangenomen, oppositie toegewezen voor de betrokken diensten van klasse 39 (autoverhuur). Zoveelste zaak waarbij de gebrekkige kennis van het Engels in Spanje een rol speelt (“even on the assumption that an average Spanish consumer is able to recognise, in the conflicting marks, the English word ‘car”).
47. It is true that the level of attention of the average consumer is likely to vary according to the category of goods or services in question. However, in the present case, there is no basis for the inference that the degree of attention of the relevant public is particularly high when a car rental supplier is being chosen. There are no factors present which encourage a high degree of attention, such as a high price or the technological nature of the service. Consequently, the applicant’s argument that the relevant public is particularly attentive because of the nature of the services covered in the present case must be rejected.
48. In addition, the applicant claimed that the earlier mark was not distinctive, by arguing that it was the abbreviation of ‘Canary Islands car’. However, as was stated in paragraph 45 above, the earlier mark will not be perceived by the relevant public as being the abbreviation of ‘Canary Islands car’. Accordingly, it cannot be maintained that the earlier mark has limited protection.
49. The Board of Appeal states in the contested decision that the majority of motor vehicle rental contracts are entered into by telephone. While there is no doubt that the services in question may be chosen by sight, it is equally undeniable that a not insignificant proportion of car rental contracts are negotiated orally. Moreover, on any view of the matter, it must be pointed out that car rental suppliers are recommended and chosen orally in a significant number of cases. Consequently, while it is true that the potential customer of the services in question may encounter the visual representation of the mark first, the phonetic element may play a decisive role in his choosing the services in question, in particular as regards services, amongst those covered by the mark applied for, which are not limited to car rental in the strict sense.
50. In the light of all those considerations, the Board of Appeal was fully entitled to conclude in the contested decision that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94. “
Lees het arrest hier.
