The march of the elephants

tonicMarkham is a brand of tonic. Although we do not know the brand itself, we do love tonic (preferably mixed with gin). The beautiful logo of Markham is an elephant, as shown left.
Markham filed an opposition against the European application of an other elephant logo, also filed for tonic and alcoholic beverages. The OHIM had a look at both trademarks and found the marks conceptually similar: both show an elephant. But there the similarity ends. The depiction of the elephants is completely different: the shape, position and style differ. Also aurally the trademarks show no similarity (the application cannot be pronounced at all). This last point takes more weight for the OHIM as these products are normally order orally.
Not surprisingly, the opposition is rejected. So, an elephant in two trademarks is often not sufficient for constituting similarity. Further striking visual similarities must be present.

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