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The General Court has ruled on whether there is a likelihood of confusion between the marks LITU and PITU in relation to wine.
Viña y Bodega Botalcura SA applied to register the word LITU in Class 33 for ‘Wines from Chile’. Anton Rimerschmid Weinbrennerei und Likorfabrik GmbH opposed the EU application on the basis of their earlier EUTM word mark PITU, registered in classes 30, 32 and 33, including for ‘Alcoholic beverages (with the exception of beer)’. This opposition was rejected.
Upon appeal, the Board of Appeal agreed with the opposition division that there was no likelihood of confusion. It found that the relevant territory was the European Union and that the goods were directed at the public at large with a ‘normal’ level of attention.
The goods were considered identical and the Board of Appeal further held that, although there was a certain degree of visual and phonetic similarity, they were not conceptually similar and there was no likelihood of confusion. Due to the shortness of the marks, the public would pay more attention to the differences between them and especially to the beginning of the marks. As a result, the fact that the marks did not share the same first letter was important. This visual difference was further significant as the goods were commonly purchased in supermarkets, where this visual difference would be easily noticed.
Before the General Court, the opponent submitted that the signs were both visually and phonetically similar and that a conceptual comparison would not change the impact on the assessment of the likelihood of confusion. It also sought to rely on a UKIPO decision that there was a likelihood of confusion between PITU and RITU.
The General Court stated that although the marks were visually similar due to the last three letters of the marks, this did not offset the differences between the first letters of the words. In that sense, the Court held that ‘P’ differed significantly from ‘L’, regardless of how they were written. The General Court distinguished the UKIPO decision in that ‘P’ and ‘R’ were considered visually similar, although noted that they are not bound by national authorities in similar cases.
Phonetically, the General Court also relied on the differences between the first two letters of PITU and LITU to hold that the marks are only similar to a certain degree, as the differences in the letter allow them to be distinguished. The opponent tried to argue that particular importance should be attached to the phonetic similarity of the marks as they are often ordered in noisy locations. However, the General Court followed the argument of the EUIPO and the Board of Appeal in that wines are normally sold in self-service shops where the consumers primarily rely on the image of the mark. Even in restaurants and bars, consumers choose wine from a wine list before placing their order verbally.
Conceptually the General Court held that the marks do not have any meaning for the majority of the public, meaning that a conceptual comparison is not possible.
In light of the above, the General Court found that there was no likelihood of confusion and the appeal was therefore dismissed.