Likelihood of Confusion Between Ragolizia and Favolizia
August Storck KG v OHIM: Case T-462/09 - On 12 January 2012, the General Court of the European Union (the Court) agreed with OHIM's Board of Appeal that there exists a likelihood of confusion between the Community trade mark (CTM) Application for 'RAGOLIZIA' by August Storck KG and the earlier CTM for 'FAVOLIZIA' owned by Radio Televisione Italiana SpA.
The parties did not dispute the Board of Appeal's findings that (1) the relevant public was the whole of the European Community, and (2) the goods in question were identical (both marks covered goods in Class 30).
August Storck (the appellant) argued that the marks were visually dissimilar and had a low degree of phonetic similarity on the basis that the first and third letters were different and such difference appeared at the beginning of the marks, to which the average consumer usually pays greater attention. The Court agreed with the Board of Appeal that the marks present a 'certain' degree of visual and phonetic similarity because (1) they are of the same length, (2) seven of the nine letters featured in both marks are identical and ordered in the same sequence and, (3) phonetically, the two syllables with different consonants (R/F and G/V) feature identical consonants and the remaining syllables (LI-ZI-A) are identical.
The appellant also argued that the marks differed conceptually, because 'RAGOLIZIA' is a made up word, whereas 'FAVOLIZIA' includes the syllables 'FA-VO', which bring to mind the English word 'favour' (also argued to be virtually identical in many other European languages). Further, August Storck observed that the words 'favour' and 'FAVOLIZIA', in combination with goods in class 30 (eg, chocolate; baking ingredients; tea; coffee; etc.), would be understood as a play on the word 'favourite'. However, the appellant brought no evidence to substantiate the latter assertion.
The Court concluded that both marks were invented words and that it was not possible to carry out a conceptual comparison and noted that, even if the word 'FAVOLIZIA' called to mind words in the national languages of one or more Member States, this would not be a determining factor as the relevant public for the purposes of the opposition was the whole Community. Additionally, any such conceptual difference would need to be balanced against the existing phonetic and visual similarity.
In light of the above, the Court concluded that there was a likelihood of confusion between the marks and that the opposition should stand.