According to the OHIM, the trademarks are visually only remotely similar, on the other hand, conceptual and aural, there exists a similarity. The words have no meaning in respect of clothing and while in the contested sign the device elements are dominant, the overall impression of the marks is similar. Thus, a risk of confusion is at hand and the European application is rejected.
MarkMatters.com agrees with the reasoning of the OHIM in this opposition. Of course, the OHIM rules only on the trademarks in question and will not include the use in its decision. The question is whether the use of such a sign on a t-shirt would also be forbidden. The kind of signs with “I love” are of course quite common on shirts.
The answer on this question largely depends on the position of the trademark. As a Dutch judge recently stated in a decision, use of a sign left on the chest constitutes use as a trademark and not merely decoration. The judge held that trademarks tend to be positioned left on the chest (think of the poloplayer of Ralph Lauren and the crocodile of Lacoste). So, this sign left on a chest will be risky.
And what about the picture of the heart in the middle of a t-shirt? This is the common place for many taglines, pictures, drawings etc. Does this constitute trademark use or will use on this spot be perceived as decoration? Interesting question. It all depends on the circumstances, but incidental use will probably not be considered to be trademark use as the sign will not act as a sign of origin. In the event somebody had this question at hand we love to hear the outcome of the case.
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