In February 2015, Stirlinx Arkadiusz Kamusiński (the Applicant) filed an EU trade mark application for the word mark Brave Paper covering, amongst other things, paper, printed matter and advertising, and the sale of electronic versions of newspapers, in classes 16 and 35.
Heinrich Bauer Verlag KG (the Opponent) opposed the application, based on its earlier German trade mark BRAVO covering identical and similar goods and services in classes 9, 16, 35, and 41. The Opposition Division rejected the opposition.
The Opponent filed a notice of appeal, and the Fourth Board of Appeal of EUIPO annulled the Opposition Division's decision and rejected the application. The Applicant appealed to the General Court.
The General Court noted that, according to settled case law, there are two cumulative conditions that must exist in order positively to find a likelihood of confusion:
- The marks in question need to be identical or similar.
- The goods and services covered by the mark at issue must also be identical or similar.
In addition, the likelihood of confusion must be assessed globally, according to the relevant public's perception of the signs and the goods and services in question.
In relation to the average level of attention of the relevant public, the Court clarified that it is not necessary to examine the likelihood of confusion on the part of the public which shows a higher than average level of attention. Instead, it is the public with the lowest level of attention that should be taken into account.
The argument that the relevant goods are aimed at the general public, and to business consumers whose level of attention is higher than average, has no effect on the assessment of the likelihood of confusion.
It was not disputed by the parties that the goods in class 16 were identical and that the services in class 35 had an average degree of similarity, given their complementary nature, with the goods in class 9 and 16 covered by the earlier registration.
Regarding the similarity of the marks Brave Paper and BRAVO, the Court stated that the assessment must be based on the overall impression, considering the dominant distinctive element of the mark and that the public will not normally consider descriptive elements of the mark.
In addition, consumers normally place more importance on the first part of the sign and the fact that a sign appears in upper-case characters is irrelevant because the protection is offered to the word mark and not to the graphic characteristics.
In the present case, it was not disputed that the term "paper" was descriptive of the goods and services in class 16 and 35. Moreover, both signs shared the four first letters and the pronunciation of the first syllable of the mark.
The Court also established a conceptual similarity between the marks at issue, because the relevant public will perceive the element "bravo" as an exclamation praising a brave person for an accomplishment, and the term "brave" will be understood as such by the English speaking public.
In conclusion, the General Court confirmed the findings of the Board of Appeal stating that there was a likelihood of confusion and dismissed the action in its entirety.
Case Ref: T-37/18