ECLI:EU:T:2005:89

Case T-33/03 Osotspa Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark – Opposition proceedings – Earlier national and Community figurative SHARK marks – Application for Community word mark Hai – Absolute ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94) Judgment of the Court of First Instance (Fourth Chamber), 9 March 2005 Summary of the Judgment Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Word sign Hai and figurative SHARK marks (Council Regulation No 40/94, Art. 8(1)(b)) There is no likelihood of confusion, as regards the average consumer in the European Union and in Austria in particular, between the word mark Hai, for which registration as a Community trade mark was sought inter alia for goods in Classes 5, 32 and 33 within the meaning of the Nice Agreement, and the figurative SHARK marks with special graphics the letters of which have stylised characters so that the whole of the sign calls to mind the form of a shark, which were previously registered in Austria and as a Community trade mark for identical or similar goods, namely ‘non-alcoholic drinks; syrups and other preparations for making beverages’ in Class 32 of that agreement, since, as it has been stated that the earlier marks have a distinctive character per se, the significant visual and aural differences between the marks in question are such as to cancel out, to a large extent, their conceptual similarity which depends on prior translation, so that the degree of similarity between those marks is not sufficiently great for the Court to make a finding that the public might believe that the goods in question come from the same undertaking or, as the case may be, from undertakings which are economically linked. (see paras 38, 46, 60, 62, 64-65) JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)9 March 2005(1) (Community trade mark – Opposition proceedings – Earlier national and Community figurative SHARK marks – Application for Community word mark Hai – Absolute ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94) applicant, v defendant, THE COURT OF FIRST INSTANCEOF THE EUROPEAN COMMUNITIES (Fourth Chamber), gives the following On those grounds, THE COURT OF FIRST INSTANCE (Fourth Chamber) Legal Tiili Vadapalas H. Jung H. Legal Registrar President 1 – Language of the case: German.