On 13 November 2014, the General Court issued its decision in Natura Selection v OHIM – Afoi Anezoulaki AE finding a likelihood of confusion between the trade marks at issue on the basis that there was similarity between retail services relating to table covers in Class 35 and table covers in Class 24. (T-549/10)
Afoi Anezoulaki AE had filed a Community Trade Mark application for the word mark natur on 12 May 2008 covering “Textiles and textile goods, not included in other classes; bed and table covers” in Class 24. Natura Selection SL opposed the application on the grounds that there was a likelihood of confusion between the subject mark and its three earlier figurative Community Trade Marks which included the word natura as well as additional graphical and verbal elements:
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The earlier marks were registered for goods in Class 20 as well as retail services relating to the provision of table covers in Class 35. The OHIM Opposition Division upheld the opposition in respect of ‘textiles and textile goods, not included in other classes; bed covers’ in Class 24 but dismissed it in respect of ‘table covers’ (also in Class 24). Natura Selection SL filed a notice of appeal, however the Board of Appeal agreed with the Opposition Division that “table covers” were not similar to the goods in Class 20 or to the services in Class 35 covered by the earlier marks, and as such there was no likelihood of confusion between the marks. The appeal was dismissed and resulted in Natura Selection SL filing a subsequent appeal to the General Court.
In its judgement, the General Court stated that according to settled case law there is similarity between goods and retail services which relate to those goods. Furthermore, the Court held that there was similarity between the Class 35 services relating to the commercial retailing of table covers and the provision of table covers “via worldwide telematic networks” (which were protected by the earlier mark) and the table covers included in Class 24 of the later application. The Court also held that “the services covered by the earlier application for the mark natura constitute one of the possible distribution channels for the goods covered by the mark applied for. That fact thus accentuates their similarity.” Consequently, the Court ruled that the Board of Appeal had been wrong in finding that there was no likelihood of confusion and held that the contested decision be annulled.
The line between the similarity of certain goods and retailing services can often seem blurred, with trade mark owners unsure if they can take appropriate action. This judgment will be a welcome decision and adds to the increasing body of case law which confirms that there is similarity between goods and retail services which relate to those goods.