Scandic Distilleries SA, established in Bihor (Romania), contested a decision of the Second Board of Appeal that denied registration of the figurative sign BÜRGER as a Community trade mark for goods and services in Classes 32 (Beers) and 35 (
The Court found that the Board of Appeal rightly observed the legal framework applicable to the dispute: similarity of conflicting signs based on a global assessment of the likelihood of confusion, as regards the visual, phonetic or conceptual similarity of the marks, based on the overall impression conveyed to the relevant public. The Board also correctly noted that for the purposes of the global assessment the average customer was deemed to be reasonably well informed and reasonably observant and circumspect. Furthermore, account was be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks, but must place his trust in his imperfect recollection of them [after a good beer drinking night out]. It was also to be borne in mind that the average consumer’s level of attention was likely to vary according to the
The Court held that the Board of Appeal rightly observed that;
- as regards the visual aspect, the figurative elements of the BÜRGER sign were not particularly imaginative and would be perceived as decorative elements. The dominant element of the mark was undeniably the word element BÜRGER. 'In view of the fact that the dominant element of the mark applied for coincides with the word ‘bürger’ constituted by the first six letters of the earlier mark, there is thus a certain degree of visual similarity between the conflicting signs, even if it must be regarded as low' (at );
- as regards the phonetic aspect, there was an average degree of phonetic similarity between the conflicting signs, in view of the fact that the relevant consumers would tend not to pronounce the decorative word elements. 'Moreover, the relevant consumers will also tend not to pronounce those elements, simply to economise on words because they take time to pronounce [at the bar] and are easily [capable of delaying service] separable from the dominant element of the mark applied for, namely the word ‘bürger’' (at );
- as regards the conceptual comparison,the unitary character of the Community trade mark meant that an earlier mark could be relied on in opposition proceedings even if only in relation to the perception of consumers in part of the EU. It sufficed 'to observe that in the German-speaking part of the European Union the word ‘bräu’, in that it refers to the brewing of beer, will be perceived by the average consumer as descriptive of the goods concerned, so that that consumer’s attention will focus particularly on the word ‘bürger’' (at ), which has a precise meaning in the German language referring to the concept of 'citizen'.
|e.g. a common name for beers|