Bestellen in een lawaaiige omgeving
Gerecht EU 17 januari 2012, zaak T-522/10 (Hell Energy tegen OHIM/Hansa Mineralbrunnen GmbH) - dossier
Gemeenschapsmerkenrecht. De aanvrager van gemeenschapsbeeldmerk HELL (energiedranken) komt in de oppositieprocedure gemeenschapswoordmerk HELLA (energiedranken) tegen. De oppositie wordt toegewezen, waarna het beroep wordt afgewezen, nu is de vraag of ten onrechte verwarringsgevaar is vastgesteld?
Ondanks de referenties naar talloze namen van filmen, liederen en muziekgroepen door aanvrager is er juist geconcludeerd dat het relevante publiek geen betekenis aan het woord "hell" in conceptuele zin geeft. Tot slot volgt dat de "aural impact is, in the present case, of greater importance than the visual or conceptual impression as the goods in question are mostly purchased in a noisy environment, like a bar or a restaurant, and ordered orally," het beroep wordt afgewezen. Het tweede middel is ongegrond, want de aanvrager maakt niet duidelijk waarom de Board of Appeal een merkenmonopolie constitueert die in strijd is de met vrijheid van goederen en mededinging.
Conceptual similarity: 57 As OHIM points out in defence, it is not necessary, in order to assess whether there is likelihood of confusion, for such a likelihood to exist throughout the territory taken into consideration by the Board of Appeal and in all the linguistic zones in that territory. The Board of Appeal found that, for part of the relevant public, the mark applied for has no meaning.
58 On that point, the applicant’s argument as to the relevant public’s understanding of the English word ‘hell’ and the numerous references to the names of films, songs and musical groups or to expressions which have become part of everyday language in various European Union countries, do not invalidate the Board of Appeal’s finding. Such factors, although they indicate that the meaning of that word is certainly known of by part of the relevant public in part of the territory of the European Union, does not show that the relevant public, which is the average consumer, will attribute to that word the meaning of ‘hell’ throughout the territory relevant in assessing the conceptual similarity of the marks at issue.
Likelihood of confusion 65 In assessing the likelihood of confusion, the Board of Appeal first of all stated, in paragraph 32 of the contested decision, that the relevant public was the general public, which does not display a higher than average degree of attention with respect to energy drinks. Secondly, in paragraph 33 of the contested decision, the Board of Appeal highlighted the fact that the marks at issue were visually and aurally so similar that a likelihood of confusion could not be excluded, in particular having regard to the fact that consumers purchased the goods in question without in-depth analysis. It also pointed out, in paragraphs 34 and 35 of the contested decision, that the aural impact is, in the present case, of greater importance than the visual or conceptual impression as the goods in question are mostly purchased in a noisy environment, like a bar or a restaurant, and ordered orally, and that, even if they were purchased in a supermarket, the degree of similarity between the marks at issue would tend to give rise to a likelihood of confusion between them, even from a visual point of view.
66 The Board of Appeal concluded that, in view of the identity of the goods at issue and the visual and aural similarities between the marks at issue, there was a likelihood of confusion on the part of the public in the territory of the European Union in which the earlier mark was protected.
