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Both EU marks in this case covered jewellery (Class 14) and clothing (Class 25). Since the goods were identical, the issue boiled down to whether the two marks are similar; and, if so, whether there is a likelihood of confusion.

The EUIPO Opposition Division rejected the opposition, finding that there was no likelihood of confusion. The Board of Appeal subsequently dismissed an appeal by the Opponent. In doing so, it reached some conclusions which can be described as questionable at best. It found that the two marks were visually and phonetically dissimilar, deciding that the Applicant’s Mark consisted of IR in the middle plus a stylised element possibly resembling the number “2” at the start and a “crosshairs representation” at the end; and that, since the Earlier Mark had a clear meaning and the mark applied for no meaning, there was no conceptual similarity.

On further appeal, we now have the decision of the General Court. Unsurprisingly, the General Court found first that the first element of the Applicant’s Mark would more naturally be seen as a “Z”- both because of its form and also coming immediately before the two letters IR- and, second, that people will recognise the letter “O” in the fourth element, whilst also noticing the horizontal and vertical lines. In other words, the public would see the mark as a stylised version of the word ZIRO.

Moving on, the Court concluded that, after allowing for the different stylisation, the two marks were of average visual similarity. It went on to state that “ziro” and “zero” would not be pronounced in the same way, the pronunciation of the former being “zai-ro” (in the same way as “biro” or “giro”). However, there was still an average level of phonetic similarity.

The only points on which the General Court agreed with the Board of Appeal were in finding that there was no conceptual similarity between the two marks and that, for clothing in particular, the visual aspect of the marks was the most important factor.

Finally we reach the crux. Because the visual element was particularly important, and the two marks were visually similar, the obvious end point was that there was a likelihood of confusion and the appeal succeeded. We doubt any reader would take issue with this outcome, but suspect that most will be wondering why it took two appeals to get there.

Case T-106/19