OHIM, Opposition Division, January 21, 2010
For the OHIM, the visual difference lying in the middle symbol “&” of the contested trademark was upheld as perceivable by consumers given the short length of the marks even if they coincided in the first and last letters. Aurally, the rhythm and intonation of the signs was quite different for the OHIM. Their pronunciation was outlined as quite distinct in particular in English, French and German. No intellectual comparison was applied considering the marks had no meaning in any of the European languages. The OHIM concluded that due to the shortness of the marks, the differences between the signs would be clearly perceived and kept in mind by the relevant public as to avoid any likelihood of confusion.
The decision is in line with the Community case law which grants restricted scope of protection to trademarks short in length. In our view this case was quite borderline because the difference lied in the middle position of the contested mark and consisted in adding one symbol and not another letter.
The letters VS could have been considered as being the image that consumers would have kept of the mark V&S because these were the sole and unique letters retrieved in the mark. The high level of care of consumers for some of the products in hands (“cufflinks, tiepins, pics (or precious metal)”) certainly pushed the OHIM to deny similarity.