The well-known Japan producer of footwear and sports equipment Asics lost a lawsuit before the European Court regarding an opposition filed by the company against the following figurative European trademark for classes 18, 24 и 25:
Against this mark, Asics submitted the following earlier EU and Spanish marks in classes 18, 25 и 28:
The EUIPO rejected the opposition considering the signs as not confusingly similar. The decision was appealed but the European court upheld it.
According to the to Court:
It should be noted that the mark applied for is composed of four thin straight black lines with a serrated outline. Two of those lines, placed in parallel, go upwards diagonally from left to right and cross, in their middle, two other shorter parallel lines, going downwards diagonally from left to right.
As regards the earlier marks, they are composed of four thick black lines. Two straight lines go downwards diagonally from left to right, while moving slightly apart from each other, and cross two converging curved lines which go upwards from left to right. The convergence and crossing of the straight lines and the curved lines give the earlier marks, which may be perceived as the letter ‘x’ superimposed on the letter ‘v’ or on the character ‘’, an impression of movement.
Thus, even if the consumer does not recall details such as the size or thickness of the lines, the overall impression between, on the one hand, thick lines and curves forming a letter ‘x’ superimposed on a character ‘’ and, on the other hand, thin straight lines that can be perceived as a character ‘#’ inclined backwards to 45 degrees is so different that the consumer will not make a connection between the signs at issue solely on the basis that they are both composed of parallel lines crossing two other longer lines.
In the light of the foregoing, the Board of Appeal found correctly that the overall impression given by the marks at issue was different, which leads to the conclusion that there is no visual similarity.
The Asics’ argument that the signs are similar even more when the way how Asics’ marks are used on some of their products is taken into account was dismissed because the only thing which is relevant for the comparison is the way how signs are registered.
The well-known status of the earlier marks was not be considered too because the Court found that marks weren’t similar enough.
The full text of the decision can be found here.