In case T-361/08, the General Court dismissed the opposition based on a figurative trademark depicting a winged creature against another winged creature. The signs were found to produce a different overall impression while the products were regarded as identical.
The General Court concurred with previous findings of the Opposition Division and of the Board of Appeal and considered the marks to be visually different. Visually, the earlier mark was regarded as not immediately discernable as a peacock while the contested trademark represented a specific stylised peacock and, even if it was admitted that the opposed mark would be perceived as representing a peacock, the signs would still far remove from each other.
Aurally, the marks also differed to the extent that the public would use the words ‘Thai Silk’ of the contested mark rather than a term corresponding to the animal represented because there was uncertainty as to what this exact animal.
Conceptually, the marks had a weak similarity for the Court. The conceptual content of a peacock was indirectly and just possibly suggested to the relevant public. The marks rather transmitted the broad idea of beauty or elegance of the goods concerned for the Court.
After the General Court retaining on December 14, 2006, visual and intellectual similarities between deer’s head representations and the Court of Justice confirming on July 17, 2008 a likelihood of confusion between two representations of firs, the Community practice has made a step back as to the extent of protection of figurative trademarks. This started on May 20, 2009, with the Opposition Division saying that there was no likelihood of confusion between trademarks representing penguins. It is now going further up on that road with the above winged creature decision especially considering that the products were found to be identical.
Contested CTM Earlier German trademark