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Hot-Can’s EUTM application was opposed by Monster on the basis of ten Earlier Marks. The Opponent alleged that there was a likelihood of confusion between the Applicant’s Mark and the Earlier Marks under Article 8(1)(b) of Regulation No 207/2009; and/or that the Applicant’s Mark takes unfair advantage of, or is detrimental to the distinctive character of the Earlier Marks under Article 8(5) of Regulation No 207/2009. The Opposition Division found the marks to be dissimilar and rejected the opposition. Monster applied to the Fifth Board of Appeal of the EUIPO (the ‘Board of Appeal’), but again failed as the marks were held to be visually, conceptually and phonetically dissimilar.
Remarkably, Monster attempted one final bite by appealing to the General Court. In rejecting Monster’s application, the General Court held that:
- The Board of Appeal had been correct in holding that the relevant public was the general public of the EU having a relatively low level of attention.
- The goods covered by the Applicant’s Mark are identical or similar to the goods covered by the Earlier Mark.
- The three wavy lines in the Applicant’s Mark cannot be considered a dominant feature. The words ‘HoToGo’ and ‘self-heating can technology’, as well as the outline of the top of the can (from where the three wavy lines protrude) were held to be at least as distinctive. The inclusion of the words ‘hot’ and ‘self-heating’ was held to give an explanation to the three wavy lines which would be taken to mean ‘heat’.
- If the three wavy lines are visually compared to the ‘claw device’ in the Earlier Marks, there are still considerable differences. The three wavy lines denote heat and are shown as rising up from the can. The claw marks depict downward scratches. Overall the Applicant’s Mark is visually different to the Earlier Marks.
- Conceptually the marks are different because the Earlier Marks denote the scratch of a claw, whereas the Applicant’s Mark suggests heat rising out of a can.
- There is no phonetic similarity between the Applicant’s Mark and the Earlier Marks as the relevant public would refer to the marks differently.
- There was no likelihood of confusion.
- Since the marks were found to be different, the Applicant’s Mark does not take unfair advantage of, and is not detrimental to the distinctive character of the Earlier Marks.