Correct Test is Goods Covered by Marks, Rather Than Those Sold Under Marks

    April 2012

    In Kitzinger & Co (GmbH & Co KG) v Office for Harmonisation in the Internal Market (OHIM) (Case T-249/10, January 17 2012), the General Court has upheld a decision of the Fourth Board of Appeal of OHIM to reject Kitzinger’s Community trademark (CTM) application, filed in May 2005, for the following stylised mark covering goods in Class 16 of the Nice Classification.

    The opposition, by Mitteldeutscher Rundfunk and Zweites Deutsches Fernsehen, was based on an earlier CTM registration of the word mark KIKA and a German registration of the following stylised mark, registered in June 2004 and February 2000 respectively, also covering goods in Class 16.

    The opposition was filed in March 2007 on the basis of Articles 8(1)(a) and (b) of the Community Trademark Regulation (40/94), now the Community Trademark Regulation (207/2009). In July 2008 the Opposition Division of OHIM upheld the opposition on the basis of the German registration and rejected

    Kitzinger’s application in respect of all goods. Kitzinger appealed and, in March 2010, the Fourth Board of Appeal of OHIM rejected the appeal, finding a likelihood of confusion on the basis of:

    • the respective goods being identical or similar and aimed at
      end consumers; and
    • the marks having an average degree of visual similarity,
      a high degree of phonetic similarity and no particular
      conceptual meaning.

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