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Golden Balls victorious in Europe

19 September 2013

The General Court of the European Union (‘GCEU’) has allowed [Case T-437/11] Golden Balls Ltd’s appeal against a (much criticised) OHIM Board of Appeal decision that its Community trade mark application for ‘GOLDEN BALLS’ was confusingly similar to the earlier Community trade mark ‘BALLON D’OR’ (or ‘golden ball’ – owned by French-based Intra-Presse) for goods in Class 16.

It is already established that it is possible that a mere conceptual similarity between two marks can create a likelihood of confusion where the goods they are registered for are similar, provided that the earlier mark has a high distinctive character.

In a decision that the majority of consumers will view as common sense, the GCEU held that the fact that the conflicting marks were registered for identical goods did not mean that conceptual similarity between them, which required a prior translation, was sufficient to make up for their visual and phonetic differences. The fact that the marks were in different languages created a ‘manifest distinction’ between them “so that … the average consumer will not immediately associate them without undergoing an intellectual process of translation …”.

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