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04 December 2017
An application was filed for the device mark BALNEO FAMILY (Figure 1). The application was opposed by the owner of the prior word mark BALEA, which was registered for almost identical products in Classes 3, 4 and 5.
The Hungarian Intellectual Property Office (HIPO) rejected the opposition, holding that the marks' visual and phonetic similarities were weak and that the marks had no conceptual identity.
The opponent requested a review before the Metropolitan Tribunal. The tribunal disagreed with the HIPO and granted the opposition, ordering the refusal of the applied-for mark. As regards the visual similarities, the court held that the public would consider both signs to be foreign words and, as such, even a low level of similarity could result in confusion. In respect of the phonetic similarities, the court held that as the endings of such words are often not pronounced, they were irrelevant from a phonetic perspective.
The applicant filed an appeal with the Metropolitan Court of Appeal. The court rejected the appeal and confirmed the Metropolitan Tribunal's opinion (8.Pkf.26.411/2015).
The determination of likelihood of confusion is often a sensitive issue, as demonstrated by this case.
Notably, although the opponent's mark BALEA was used for body care products (as was the applied-for mark), the trademark owner did not refer to the mark's reputation.
This case is also notable because the HIPO and the tribunal came to different conclusions after examining the same facts. It speaks for itself that the tribunal's opinion was approved by the court.
For further information on this topic please contact Alexander Vida at Danubia Patent & Law Office LLC by telephone (+36 1 411 8800) or email (firstname.lastname@example.org). The Danubia Patent & Law Office website can be accessed at www.danubia.hu.
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