To love Y is not as to fly

heart-shape-1714807_960_720.jpgThe European Court ruled in case C‑99/18 P, FTI Touristik GmbH v Harald Prantner и Daniel Giersch, which in brief concerns an attempt by both individuals to register the following European trademark:

download.pngIts classes of goods and services are as follow:

– Class 16: “Printed matter; photographs; stationery; wrapping materials; printed publications; books; handbooks [manuals]; pamphlets; newsletters; albums; newspapers; magazines and periodicals; tickets; vouchers; coupons and travel documents; passes; tags and labels; posters; postcards; calendars; diaries; instructional material”;

–  Class 39: “Transport; travel arrangement; travel information; provision of car parking facilities; transportation of goods, passengers and travelers by air, land, sea and rail; airline and shipping services; airport check-in services; arranging of transportation for passengers, goods and trips by land and sea; airline services; baggage handling services; cargo handling and freight services; arranging, operating and providing facilities for cruises, tours, excursions and vacations; aircraft chartering; rental and hire of aircraft, cars and boats; taxi services; bus services; chauffeuring; coach services; train services; airport transfer services; airport parking services; aircraft parking services; escorting of travellers; travel agency services; advisory, consultancy and information services relating to all the aforesaid services; providing information regarding transportation services; providing travel information online; travel booking via computer databases or the Internet”;

–  Class 43: “Services for providing food and drink, temporary accommodation; restaurant and bar services; food and drink catering; provision of holiday accommodation; booking and reservation services for restaurants and holiday accommodation; hotels and/or restaurants; reservations in connection with running hotels.”

Against this application, an opposition was filed by FTI Touristik on the ground of the following early registered European trademark for classes 16, 39, 41, 43:

download (1).png

EUIPO ruled that there is no significant similarity between the signs at hand, stating that:

“Phonetically, it found, in essence, that for the public that did not know the English term “fly”, the signs at issue bore no similarity. For consumers that did know the English word “fly”, there was a phonetic similarity provided that the mark applied for was associated with the word “fly”. However, this seemed rather unlikely since, first, there was a great difference between the letter “y” and the stylised heart in the mark applied for and, secondly, it was unusual to replace the letter “y” with a heart symbol. Conceptually, it found, that, for the public that did not know the English term “fly”, the signs at issue bore no similarity. For consumers that did know and understand the English word “fly”, there was a conceptual similarity provided that the word “fly” was identified in the mark applied for. However, this seemed unlikely for the same reasons as those set out in the context of the assessment of the phonetic similarity.”

The decision was appealed.

The European court agreed with EUIPO dismissing the appeal. Most consumers will not understand an image of the heart in the later mark as Y letter. Even in case that this is possible the additional element .de in the earlier mark is sufficient to make the necessary distinction between the signs.

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