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IP Cases & Commentary – Details

2 June 2011

General Court Checks In for Cheapflights Comparison

Cheapflights International Ltd v OHIM (Cases T-460/09 and T-461/09)

 

The applicant sought registration of the sign (left) as a CTM in respect of a variety of travel related goods/services in classes 9. 16, 35, 38, 39 and 41 to 44.

The application was opposed, relying on earlier rights for the sign depicted below, left in classes 35, 36, 38, 39 and 41 to 44, also covering travel related goods/services.

The Opposition Division at OHIM rejected the opposition in respect of goods/services in classes 9, 16 and 35 and in respect of certain services in class 42. However, it upheld the opposition for the services in classes 38, 39, 41, 43 and 44, and for the remainder of the services in class 42, finding that the signs were confusingly similar where overlap occurred in the goods/services. An appeal was filed.

The Fourth Board of Appeal at OHIM upheld the appeal, thereby dismissing the opposition. The Board of Appeal found that the services in issue were identical or similar but, on comparison of the respective signs, found only a low degree of similarity which would not result in any likelihood of confusion. Their findings were based on the descriptive nature of the common elements (the words 'cheapflights' and the aeroplane devices) and the different stylisation of the two trade marks which made the signs visually similar only to a low degree. The Board found phonetic and conceptual comparisons to be irrelevant, since this would be confined solely to the descriptive elements which could not be taken into account.

A further appeal was made to the General Court who overturned the decision of the Board of Appeal on the basis that the Board’s analysis of the allegedly descriptive character of certain elements of the trade marks had been insufficiently explored.

The General Court essentially found that the Board of Appeal’s approach had been too broad brush, expressly criticising the Board’s finding that the word 'cheapflights' and aeroplane device were descriptive 'for large parts' of the services concerned, without specifying the services referred to.

Consequently, the Board had not properly substantiated its view on the alleged descriptiveness, leaving the conclusion as to an absence of any likelihood of confusion between the trade marks unsafe. The decision was consequently set aside.

This case serves as a reminder that objections in OHIM proceedings must always be particularised – whether by the parties in the proceedings or by the relevant tribunal. An appropriate analysis must be made in relation to all goods and services claimed and different conclusions can be reached in respect of different goods/services.

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