Likelihood of Confusion between Servo Suo and Servus
On 29 February 2012, the General Court of the European Union agreed with OHIM's Board of Appeal that there exists a likelihood of confusion between Azienda Agricola Colsaliz di Faganello Antionio (Colsaliz)’s Community trade mark (CTM) application for ‘SERVO SUO’ (the sign) and a number of earlier registrations, including a CTM, for ‘SERVUS’ (the earlier mark) owned by Weinkellerei Lenz Moser AG.
The parties did not dispute the Board of Appeal's finding that the relevant public was the whole of the European Community.
Both the sign and the earlier mark covered goods in Class 33: the former had been applied for in respect of ‘alcoholic beverages, excluding beers’, whereas the latter was registered in respect of ‘alcoholic beverages (excluding beers), wines and sparkling wines’. Colsaliz argued that the goods were different because of their ‘sensory properties’, origins, methods of use, distribution channels and relevant market sectors. The Court, following its constant jurisprudence (eg, Oberhauser v OHIM, T-104/01), rejected this argument and reiterated that goods and/or services are identical, where the specification of the earlier mark includes all the goods and/or services contained in the specification of the mark applied for.
Colsaliz argued that the average consumer of the goods in question (ie, alcoholic beverages) possessed a greater than average level of attention, by virtue of the fact that it pays attention to the origin, denominations and characteristics of the goods. The Court disagreed and noted that alcoholic beverages are consumer goods produced for the mass market. According to the Court’s jurisprudence, the average consumer of wines is deemed to be reasonably well-informed, observant and circumspect and to have an average level of attention (see Castell del Remei ODA v OHIM, T-101/06), therefore by analogy the level of attention of the relevant public in this case was also average.
Colsaliz argued that the marks were different visually, phonetically and conceptually. The Court entirely agreed with the assessment of OHIM’s Board of Appeal and found that the two marks presented an average degree of visual and phonetic similarity and were conceptually similar only insofar as the Italian public was concerned.
In light of the above, the Court concluded that there existed a likelihood of confusion between the sign and the earlier mark and that the appeal should be rejected.