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The Art Company B & S failed successfully to oppose THE ART OF RAW on the basis of its prior ART and The Art Company marks (shown above right). No reputation/enhanced rights in the earlier marks were claimed.
The Board of Appeal had found that the marks had a low degree of visual similarity and that, whereas the earlier marks refer to the general concept of ‘art’, THE ART OF RAW evokes a particular kind of art. Which style or movement, the Board did not say (most likely something modern). The General Court was tasked with considering the merits of that decision.
The General Court highlighted all the differences between the marks. They focused on the earlier mark ART rather than THE ART COMPANY due to its closer similarity to the Applicant’s Mark. Particular note was made of the first word ‘the’ in the Applicant’s mark (which would not be insignificant on viewing the mark as a whole) and the asterix in the earlier mark.
The Court concurred with the Board on the different meaning of the word ART in the marks.
The Court stated that the word ‘art’ is in fact laudatory and has weak distinctive character, as it evokes the idea that the goods have been made ‘creatively’ or ‘artistically’. This was said to be intrinsic and not requiring evidence of common usage in the relevant marketplace.
Finally, the Court disagreed with the Opponent that the word ‘art’ dominated the Applicant’s mark and rather found that the word ‘art’, due its weak distinctiveness, could not form the dominant element. The identical nature of the single word ‘art’ could not be offset by the many differences between them. Without ‘similarity’ between the marks, there could not be a basis under Article 8(1)(b) (likelihood of confusion) and the attempt to overturn the Board’s decision was consequently dismissed.