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‘Golden Balls’ CTM saga: differing degrees of similarity

21 November 2014

Last year we reported on the General Court’s decision that, on a global consideration of the trade marks ‘Golden Balls’ and ‘Ballon D’or’, their visual and phonetic differences (despite their minimal conceptual similarities) meant they were not ‘similar’ under Art 8(1)(b) CTM Regulation 2007/2009 (requiring identical/similar marks for identical/similar goods and a likelihood of confusion) or Art 8(5) (requiring identical/similar marks where the later mark takes advantage of, or causes detriment to the reputation/distinctive character of the earlier).

Yesterday, the CJEU set aside part of this decision, due to the different similarity thresholds that the above Articles require. Art 8(5) does not require sufficient similarity for a likelihood of confusion between the marks; a ‘faint’ degree of similarity sufficient to establish ‘a link’ between the marks will suffice.

We await the Board of Appeal’s decision on whether the average consumer would establish such a link. Further, Ballon D’or’s proprietors still need to demonstrate unfair advantage/detriment will occur; this may be difficult in view of the parties’ different economic and commercial positions.

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