Intellectual Property – Community Trade Mark – Confusion
The case of Armacell Enterprise GmbH v OHIM (Trade Marks and Designs) [2006], involved an application for a community trade mark under Council Regulation (EC) 40/94 (“the Regulation”). The application was opposed by nmc SA (an intervener) pursuant to Art 42(1) of the Regulation.
Armacell were seeking to have the word ‘Armafoam’ protected in class 20 in respect of
‘Foam goods made from elastomerics, thermoplastics or thermosets as a system component or as end use application’
The intervener opposed the application on the grounds that there was a likelihood of confusion between ‘Armafoam’ and ‘Nomafoam’. The earlier mark was registered in respect of classes 17, 19, 20, 27 and 28 - ‘semi-processed plastic materials, non-metallic building materials, products of plastics not included in other classes, mats, non-slip mats and gymnastic and sporting articles not included in other classes’.
The opposition department of OHIM rejected the opposition filed by the intervener. It was held that ‘Armafoam’ and ‘Nomafoam’ were sufficiently dissimilar and there was no likelihood of confusion on the part of the public (community consimers).
The intervener appealed against this decision, and the First Board of Appeal of OHIM allowed the appeal. However, Armacell appealed against that decision asking for it to be annulled. They argued that the provisions of Art 8(1)(b) had been infringed by the First Board of Appeal when they found that there was a likelihood of confusion.
The court held that visually and phonetically the marks were similar, and could cause confusion amongst community consumers, especially with regard to the non-English speaking public. For those people, the marks could be considered similar. The First Board of Appeal had been correct in deciding that the marks were similar within Art 8(1)(b) of the Regulation. Therefore, it was not necessary to decide whether the English speaking public would be confused.
The appeal to have the decision annulled was dismissed.
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© RT COOPERS, 2006. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.
