Every trademark attorney loves and hates device searches regarding the availability of logo’s consisting of only device elements. A search is done in either 20 minutes as none of the found trademarks are similar or a search discloses many similar logo’s. A logo of a horse is at least conceptually similar with an other logo of a horse right?
Let’s focus on the animals and the OHIM, it is time for an Encelopedia Animales de Marques Correspondens.
OHIM rendered several decisions concerning sole animal logo’s in the last months making the OHIM an expert on describing animals.
A frog is a frog, according to the OHIM. “The absence of visual and phonetic similarity between the marks cancels out a large extent their conceptual similarity.”
The OHIM did not accepted the opposition between these two bulls. However, in Appeal, the Board rejected this decision as it is not up to the Board to assess the exclusive rights in the device of a bull as such but only the existence of a likelihood of confusion between the marks in question. And the concerning devices have sufficient similarities to come to that conclusion.
The OHIM did on the other hand not see the similarity between these two beetles. This decision has brought up the best of OHIM’s capacity to describe animals: “The contested sign has a pair of long antler-like pincers which protrude its head. The head is a continuation of the body. It has six legs attached to the abdomen and a pair of elbowed shaped antennae. The long body of the stag beetle has a rounded end.”
Finally, these two spider could not pass the test of similarity as well. The colors differ as well as the visual impression. “This is due to the position of the animal, the way in which the body and the head are represented (for example, the body is formed out of two rhombuses in the earlier mark but out of two ovals in the contested sign).”
The conclusion is that a conceptual similarity will not be sufficient, there must be a visual similarity as well and this similarity must be at least quite clear in order to have a good case.
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