Why TOTU is not similar to TOTTO in the EU?

The general Court of the EU has ruled in a dispute between the following EU trademark application for TOTU with graphic representation, in class 18:

and the following earlier trademark for the same class:

The EUIPO dismissed the opposition finding both signs dissimilar. In the appeal the Board of Appeal confirmed this position stating that these marks are not similar from visual, phonetic and conceptual point of view, which is necessary in order one opposition to be uphold successfully.

The applicant appealed again this time before the General Court. Its main claim was that in the trademark application the graphic representation of the mark was specified as TOTU, which in addition to the identical goods could create the necessary confusion between the consumers in the EU.

The Court disagreed. Although, every trademark application allows the word part of the sign to be specified, this is only for the purpose of the application process and database management.

Similarity between two signs can be done only based on the consumers perception of them. In that regard the trademark applied for, as it is graphically presented, is not similar to the earlier mark because the consumers probably will not read it as Totu and it is highly likely that they will not confuse it with the TOTTO trademark even though for identical goods.

Source: Önder Erol Ünsal за Lexology.

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