Change of case law as to phonetic similarity

The CJEC ruled on March 23,2006, that a mere phonetic similarity between two signs does not necessarily give rise to a likelihood of confusion. The appellant contested the earlier OHIM decisions which retained that the phonetic similarity was not counterbalancing the visual and intellectual differences between:

              /                    ZIRH

(Earlier trademark)        (contested application)

The new decision goes one step behind what the CJEC had retained on June 22, 1999, when deciding that the mere oral similarity between trade marks may create a likelihood of confusion when comparing the marks : LLOYD’S (Earlier trademark) / LOINT’S (Contested application)

This initial position brought inter alia the European Court of First Instance to retain on January 15, 2003, a likelihood of confusion on the sole phonetic similarity basis for the trademarks : MIXERY ( Earlier trademark) /

Hopefully, the currently applicable case law prevents such extremist decisions and returns to a more accurate analysis requiring one similarity out of two among the three usual levels of comparison.

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