Ref no. GC. T-815/16.

For Tune sp. z o.o. v EUIPO; Simplicity trade GmbH

Date of decision: 12.12.17 Reg 207/2009

Application

  • paper, cardboard and goods made from these materials, not included in other classes, printed matter; book-binding material, photographs, plastic materials for packaging (16)
  • advertising; business management; business administration; office functions (35)
  • education; providing of training; entertainment; sporting and cultural activities (41)

Earlier Mark

Opus

  • goods made from paper and cardboard (16)
  • advertising; business management services; business administration; office functions; organization of fairs and exhibitions for commercial or advertising purposes; business management and organisation consultancy… (35)
  • providing of training, entertainment; presentation of live performances, arranging and conducting of seminars, arranging and conducting of workshops (training)…(41)

Commentary

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

The BoA had been correct to find that the level of attention of the relevant consumer varied across the goods and services at issue. There was no requirement for them to assess likelihood of confusion in relation to each specific class in light of the particular characteristics of the relevant consumer for that range of goods or services; it was sufficient to conclude that the level of attention could vary from average to high and that the relevant public consisted of general public and consumers with specific knowledge.

The identity and similarity of the goods and services was not disputed. The BoA was correct to find that the marks were visually, phonetically and conceptually similar. The word 'opus' was the dominant element in the mark applied for; the existence of both the graphic element and the additional word 'aeternatum' played a subordinate role, due to their position and size and, in relation to the word 'aeternatum', its difficult pronunciation.