Last 29 April, in its judgement T‑106/19, the Court of Justice of the European Union, following the appeal filed by ABARCA against the EUIPO decision, upheld ABANCA's claim and refused to register the Portuguese trade mark due to the likelihood of confusion between the two marks, as both marks covered the same or similar services and due to the visual, aural and conceptual similarity between the signs, thus reiterating EUIPO's arguments.
According to the CJEU, the marks were considered aurally similar as "the auditory difference arising from the use of the word 'seguros' is not decisive" since the average consumer tends to abbreviate both because of ease of pronunciation and because he normally makes a greater note of the beginning of the mark.
As regards visual similarity, it states that although 'the visual similarity between the marks does not appear to be of a particularly high degree in the overall visual impression created by the marks in question, it is nevertheless sufficiently marked to be perceived by at least part of the relevant public', since, first, the difference between the elements of the word 'ABARCA' and 'ABANCA' is found only in the fourth letter, the beginning and the end are the same; secondly, the word element 'seguros', although distinctive, is written below the distinctive and dominant word element 'ABARCA' and in a significantly smaller font size than the latter; and finally, because consumers will, in principle, pay more attention to the word elements than to the figurative element (in this case, a flying bird) of composite marks which would, in any case, be perceived by the relevant public as a decorative background.
Finally, as regards conceptual similarity, the applicant has not submitted any evidence to show that the parts of the relevant public which speak Swedish and Danish would understand, first, that the earlier mark includes the word 'banca' and, second, that that word is a translation of the word 'bank'. Therefore, 'the applicant has not shown that the Board of Appeal erred in finding that the earlier mark has no meaning for the Swedish and Danish parts of the relevant public'.
Find the complete text of the judgment here: http://curia.europa.eu/juris/document/document.jsf?text=&docid=225934&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=144808
Written by:Cristina García Alzina
Edited by: Athena Poysky
Image extracted from CJEU judgement.