The Opposition Division initially rejected the application in respect of some of the contested goods and services, namely 'solariums for medical purposes' in Class 10, 'Solarium equipment (quartz lamps); tanning beds; tanning apparatus (sun beds); solaria, other than for medical purposes' in Class 11, and 'Solarium services; sun tanning salon services; solarium services; providing solarium (sun-tanning) facilities; providing of solarium services' in Class 44.
However, the Board of Appeal annulled this decision. In doing so, it held that the level of attention of the relevant public for the Class 10 and 11 goods was, on average, high, as tanning appliances were specialist goods which were relatively expensive and usually only bought by professionals or highly attentive end consumers. As regards the Class 44 services, these were mainly aimed at non-professionals who focused on the quality, safety, comfort and price of the service – accordingly, the level of attention was normal.
It held that, while the goods in Classes 10 and 11 were identical, there was only a remote degree of similarity between Class 11 goods covered by the earlier word mark for CHOCOLATE and the services in Class 44 covered by the Applicant's mark.
In comparing the earlier CHOCOLATE word mark and the mark applied for, it found that there was a low degree of visual and phonetic similarity and that they were conceptually similar. Overall, the signs were similar to a low degree.
The Board held that there was no likelihood of confusion. The similarities between the marks at issue were not sufficient to offset the differences between them. There was no dominant element of the mark applied for. The Opponent had also not proved that the earlier EU word mark had a reputation, so the Board dismissed its claim.
GENERAL COURT FINDINGS
Relevant public and level of attention
The Opponent claimed that the Board was wrong to say that the relevant public, with regards to the Class 11 and 44 goods / services, were professionals whose level of attention was high. It argued that the goods and services were aimed at both professionals and end consumers, and that, given the inexpensive nature of the lamps, the level of attention should have been deemed average rather than high.
However, the General Court rejected this argument and agreed with the Board of Appeal. The Class 11 goods were intended mainly for professionals. They commented that these are specialist goods which are relatively expensive. The...