On September 4, 2012 Division 3 of the Federal Court of Appeals in Civil y Commercial Matters held in the case “Tolder S.A vs. Szwarcbort David” that the trademark “BALCONY” was confusingly similar to the opponent’s trademark “BALCONFORT” and therefore dismissed the complaint, with costs to the losing party.

Division 3 stated that in spite of the evidence showing that both products co-existed in the market, it was also proven that Tolder had copied Szwarcbort’s sealing system and thereafter identified its product with a trademark (“BALCONY”) very similar to defendant-opponent’s (“BALCONFORT”). In view of this, Division 3 held that Tolder’s copy of a product while it was covered by an industrial design and the adoption of a close trademark (“BALCONFORT”) did nothing but generate likelihood of confusion, i.e. the perception that one trademark was reminiscent of another.

In this context, the coexistence of the marks involved, singled out by the copy which Tolder made of Szwarcbort’s design, was not per se enough to prove absence of confusion. On the other hand, those circumstances helped Division 3 to decide that trademarks "BALCONY" and "BALCONFORT" were indeed confusingly similar.

Thus, bearing in mind that the purpose of the Trademark Law is to protect fair trade practices and consumers’ rights, the Federal Court of Appeals decided not to accept the registration of the trademark “BALCONY”.