The team of IP Consulting successfully argued the lack of likelihood of confusion between the figurative sign “Fitto” and the word mark “VITEAU”.
The applicant – proprietor of EUTM “VITEAU”- claimed that there was a likelihood of confusion. The reason – the goods were identical or similar and the signs were similar. He also pointed out that the signs were aurally similar since they were pronounced “vitoo” and fitoo”. According to the applicant, the sound of the letters “v” and “f” was almost identical.
EUIPO correctly stated that a likelihood of confusion exists if there is a risk the public to believe the goods or services in question come from the same undertaking. In order to discover whether or not a confusion of similarity exists, several factors must be assessed.
The examination was done as if all the contested goods (classes 29, 31) are identical to those of the applicant’s earlier trade mark. The relevant public was the average costumer of the products category, who is reasonably well informed and reasonably observant.
Visually, the signs coincide in the letters “I” and “T” and differ in all the remaining elements. The signs are therefore similar to a very low degree. Aurally, both trade marks consist of two syllables. Due to the fact they sound different and they are short, the difference in their initial consonant must be taken in account. The degree of aural similarity is below average. Conceptually, the signs are also not similar. The distinctiveness of the earlier trade mark must be perceived as normal.
The Cancellation Division finds that the differences are sufficient to exclude any likelihood of public confusion.
