GC T-792/16

N & C Franchise Ltd v EUIPO; Eschenbach Optik GmbH

Date of decision: 14.12.17

Reg 207/2009

Application

  • sunglasses; sunglasses frames; clip-on sunglasses; frames for sunglasses; lenses for sunglasses; straps for sunglasses; cases for sunglasses; chains for sunglasses; frames for spectacles and sunglasses; optical lenses for use with sunglasses; eye glasses; spectacles [glasses]; children's eye glasses (9)
  • cloths for eye-glasses; wiping cloth for wiping eye glasses (21)
  • repair of sunglasses (37)

OIO

  • spectacles, spectacle frames, optical apparatus and instruments (9) (International registration designating the EU)

Commentary

The GC upheld the BoA's finding of a likelihood of confusion between the marks pursuant to Art 8(1)(b).

The BoA was correct to find that there was a higher than average degree of visual similarity given both marks contained almost identical word elements. The figurative element of the mark applied for was not more distinctive or dominant than the word element, which had a greater impact on the consumer.

The marks were also phonetically similar as the words 'ojo' and 'oio' would be pronounced the same in Slovenian.

Therefore given the identity or similarity of the goods covered by the marks and the higher than average level of attention of the relevant public, there was a likelihood of confusion between the marks.