The likelihood of confusion,es

Likelihood of confusion

To the Supreme Court, The likelihood of confusion must be assessed taking into account the users that the mark is addressed.

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In the context of a dispute between two companies that share word element, the Supreme Court held that there was no such risk.

The decision has been adopted in the judgment of the First Chamber of the Tribunal Supremo Ollie # 240/2017, dictada el 17 April 2017.

Dutch society Canna B.V.. was proprietor of a Community trade mark applied for the 02/07/2002 to distinguish in the market chemicals for industry, science, Photography, agriculture and forester, inter alia. The mark consists of the word "CANNA" accompanied at the bottom of "The solution for growth and bloom". And the embroidery, Canna B.V. He had granted the license of this brand to the Spanish company Fertilizantes Canna Spain S.L., for the same purpose.

Moreover, the Spanish entity Cannaboom S.L.. It was formed on 17/12/2010, and its corporate purpose consisted of "making, transformation, packing, marketing of fertilizers, pesticides, substrata, or chemical products, agricultural use for gardening. "These products are marketed with the" CANNABOOM ", "CANNACREM", "FLORA BOOM" and "REVIENTA COGOLLOS". D. Kitts and D. Arcadio were holders of various national marks composed of those words in different order and representations, and a Community trade mark consisting of the term "CANNA BOOM" in an explosion accompanied at the bottom of "REVIENTA COGOLLOS".

Canna B.V. Canna Fertilizers and Spanish S.L., as owner and licensee of the first Community trade mark to which we have referred, They filed a complaint against D. Cristobal, D. Arcadio y Cannaboom S.L. considering that there was a likelihood of confusion between the Community trade mark and the signs used by the entity Cannaboom S.L..

The Commercial Court Ollie # 01 Alicante No sentence handed down 72/2013, of 25/04/2013, in which he appreciated the risk of confusion Canna raised by B.V.. and Canna Spanish S.L..

That sentence was appealed by Cannaboom S.L., D. Kitts and D. Arcadio, and the Provincial Court decided to grant his appeal and dismiss the lawsuit filed by Canna B.V.. Canna Fertilizers and Spanish S.L.. The lower court understood that there was no likelihood of confusion because there were enough differences in verbal and graphic elements and because the audience that marks heading into alleged conflict was composed of consumers who were specialists botany and gardening, better able to distinguish the commercial origin of the products.

And the embroidery, Canna B.V. Canna Fertilizers and Spanish S.L.. They made an appeal against that judgment, basing it on the second instance judgment violated Article 34.2.b of the Trademark Act for opposing the law that interpreted in relation to the criteria determining the likelihood of confusion.

The reason, Plaintiffs and appellants alleged that the Provincial Court had failed the criteria established by national and Community law for the trial of confusion. Specifically, understood that without prejudice to the overall assessment, it has to meet the most distinctive element of the signs; that the use of a source of great size in the word element of the brand makes this, the dominant element; the interdependence of factors, because in this case an identity concurs products increases the risk of confusion; that the Provincial Court does not enter further determine whether the likelihood of confusion likelihood of association occurs; the fact that the mark is noticeable increases the risk of confusion; and that the word elements predominate over graphics when they are not particularly distinctive.

The resolution of the appeal, the Supreme Court states that The likelihood of confusion is that the public might believe that the goods or services identified by the signs that are facing come from the same company or related companies. Tras ello, recalls the main jurisprudential guidelines to make judgments confusion (SSTS 95/2014, of 11 March, 382/5016, of 19 May, and 151/2017, of 2 March:

– The actual determination of the risk of confusion should be made in consideration of the overall impression of the signs in heddle produced in the average consumer of the product, well informed and reasonably observant and circumspect, taking into account the degree of visual similarity, phonetic and conceptual and, en particular, the key elements.

– The likelihood of confusion must be investigated globally, taking into account all factors relevant circumstances of the case. In the overall assessment of such factors is to look for some level of compensation, The interdependence between them: so, a low degree of similarity between the goods or services may be offset by a greater degree of similarity between the marks, and conversely.

– For the purposes of that global assessment, it is assumed that the average consumer of the category of goods concerned is a consumer normally informed and reasonably observant and circumspect. However, it should be noted that the average consumer only rarely has the opportunity to compare brands, and that the level of attention of the average consumer can vary depending on the category of goods or services.

– The an overview requirement, singularly founded that the average consumer perceives as a whole, without stopping to analyze its various details, (…) It does not exclude the analytical and comparative study of the elements of the respective signs in order to evaluate the different significance in relation to the circumstances.

After the previous exegesis, the Supreme Court considers that the Provincial Court has respected the criteria and, therefore, dismissed the appeal and confirmed the judgment on appeal which in turn dismissed the demand Canna filed by B.V.. Canna Fertilizers and Spanish S.L..

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