Zoals gebruikelijk in oppositiezaken is een aantal klachten van procesrechtelijke aard. Aardig om te vermelden zijn de overwegingen met betrekking tot de beperking en specificeren van de diensten:
“28 In the present case, the restriction effected by the applicant consists, first, in the withdrawal from the list of services covered in the trade mark application of ‘monetary affairs’ and, second, in the specification of the category ‘financial affairs’ by the addition of the clarification ‘namely electronic and paper-based banking services, all relating to multi-currency payment systems; all included in Class 36’.
29 In the light of the foregoing, the withdrawal of the category ‘monetary affairs’ may be taken into consideration.
30 On the other hand, as alluded to by the parties at the hearing, the clarification made to the category ‘financial affairs’ is capable of influencing the examination of the similarity of that category of services with the services covered by the earlier mark and changes, consequently, the factual context of the dispute as it was brought before the Board of Appeal. Consequently, that clarification may not be taken into consideration by the Court.
31 In the light of all the foregoing, it must be held that, for the purposes of the present dispute, the services covered by the mark applied for, which fall within Class 36 and are concerned by the opposition, correspond to the description ‘financial affairs’.”
Met betrekking tot het vermeende beschrijvende karakter van de merken, overweegt het Gerecht dat gekeken moet worden naar de waren en diensten waar de merken betrekking op hebben.
“68 However, on the part of the relevant consumers, namely all consumers in the United Kingdom, the purpose of the financial services covered by the earlier mark is to enable them to manage their financial resources, to dispose of them and to obtain information in relation thereto, and not to create and maintain connections. Consequently, that public will not perceive the term ‘link’ as being directly descriptive of one of the aspects of the financial services at issue, but at most as being allusive, given that communication links are used in the provision of those services”
Dat wil overigens niet zeggen dat het publiek het concept link niet begrijpt, alleen maar dat ze het niet beschrijvend vinden, zo kan worden afgeleid uit de vergelijking tussen de merken.
84 Conceptually, the earlier mark will be perceived by the relevant public as meaning a ‘link’, whilst the mark applied for will be perceived as meaning ‘global link’. Those two interpretations are very close in so far as they are based on the same concept and in so far as they are distinguished only by the addition of a geographical qualifier, which will be perceived as describing the fact that the relevant services are provided at a global level. The two marks at issue are therefore very similar conceptually.
85 Given, first, their slight visual and phonetic similarity and, second, their strong conceptual similarity, the Board of Appeal did not err in finding in essence, at paragraph 46 of the contested decision, that the signs at issue, assessed as a whole, display a certain degree of similarity.”
Genuanceerd verwarringsgevaar is dan ook aannemelijk:
“98 Thus, in the first place, the finding that there is a likelihood of confusion in the present case does not amount to conferring on the intervener a monopoly on the use of the element ‘link’. This case concerns only, first the earlier mark LiNK and the mark applied for WORLDLINK and, second, the services covered by those two marks. Given that the likelihood of confusion must be assessed by reference to all factors relevant to the circumstances of the case, the finding that there is a likelihood of confusion in this case does not prejudge the outcome of other cases involving other trade mark applications or other financial services.”
De oppositie wordt in stand gehouden en het beroep wordt afgewezen.
Lees het arrest hier.
