An application for the device mark EVOBANK (Figure 1) was filed in Class 36.
The rights holder of the European device mark EVO (Figure 2), which was protected in Classes 35, 36, 38 and 45, filed an opposition action.
The Hungarian Intellectual Property Office (HIPO) allowed the opposition, holding that 'evo' – the dominant element of both marks – was distinctive as it is not used for and has no significance in respect of financial or banking services.
Further, the HIPO held that the device elements of both marks were only accessorial, although the 'bank' word element of the opposed mark was descriptive as banking services were included in the list of services covered by the mark. With regard to the likelihood of confusion, the HIPO held that the banking field has a relatively small number of participants and, as such, the co-existence of similar marks is more problematic and there is a greater danger of consumer confusion.
The applicant filed a request for review with the Metropolitan Tribunal, which was rejected. The tribunal held that, on average, bank customers are particularly attentive, as banking services often involve their property. The tribunal agreed with the HIPO that there was a likelihood of confusion – even if it is assumed that the relevant customers are more attentive than usual (3.Pk.23.573/2015).
At first glance, the two device marks are different. However, according to case law, if the figurative elements of marks are not sufficiently characteristic, the similarity of their word elements must be examined.
It is obvious that the 'bank' word element is descriptive when used for banking services. More interesting is the tribunal's decision concerning the character of banking services and its theory that bank customers are more attentive, which is convincing.
For further information on this topic please contact Alexander Vida at Danubia Patent & Law Office LLC by telephone (+36 1 411 8800) or email ([email protected]). The Danubia Patent & Law Office website can be accessed at www.danubia.hu.