(…) 34. None the less, the Board of Appeal’s finding that the relevant goods are identical can only be partially upheld. Although some of the goods covered by the marks at issue are in fact identical, that cannot be said of all the goods at issue, and in particular of integrated circuits and electronic circuits. However, it is necessary to point out, first, that all the goods in dispute, including the integrated circuits and the electronic circuits covered by the trade mark application, belong to the information technology field. Secondly, all the goods covered by the trade mark application can be regarded either as ‘computer components’ or as ‘…electronic data carriers’, or as ‘computer accessories’ covered by the earlier trade mark. Consequently, it is possible, without calling in question the global assessment of the likelihood of confusion, to regard all of them as having, at the very least, a very high degree of similarity.
(…) 42. The English word ‘sun’, which is both the only word component of the earlier trade mark and the dominant component of the trade mark applied for, will be easily understood by the public targeted, all the more so as the concept of ‘sun’ is unexpected when used for computer products and it will therefore have a greater impact on the consumer, as the Board of Appeal correctly held. The visual differences noted cannot, in that regard, cancel out the immediate conceptual association between the two marks: on the contrary, they are likely by their very nature, to reinforce it. The enhancing term ‘plus’ is not distinctive in any way and could be viewed as a way of emphasising the word ‘sun’, which it characterises in this context. The same is true of the figurative component of the mark applied for, which could be perceived as a stylised sun. Furthermore, the fact that the term ‘sunplus’ does not appear in the dictionary and forms no part of everyday language does not in any way alter that finding.
43. In light of the foregoing, the Board of Appeal was fully entitled to hold that there is a high degree of similarity between the marks at issue at the phonetic and conceptual levels, and that that similarity is not cancelled out by the existing visual differences.
44. In view of the fact that there is a very high degree of similarity between the goods covered by the earlier trade mark and by the trade mark applied for (sometimes to the extent that they are identical), and given the phonetic and conceptual similarities between the two marks, the Board of Appeal was fully entitled to find that, in the present case, there is a genuine risk that the relevant public, notwithstanding the fact that it may be particularly attentive, might believe that the goods covered by those marks have the same commercial origin.”
Lees het arrest hier.
