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2) DC Comics, US holder of earlier registrations for a device mark and the
word and device mark BATMAN in relation to goods in classes 9, 14, 16, 25, 28
opposed to registration of the word and device mark BETMENAS in the name of
UAB Daigera, LT in relation to services in class 42, namely: catering, cafes,
beer bars, hairdressing salons, beauty salons, convalescent homes, rental of
temporary accommodation, Turkish baths, services of bars, snack-bars, canteens,
hotels. The Board compared the opposed mark against each of the opponent's marks
separately. Though there were some similar elements in each of the compared
pairs, the marks were found not confusingly similar for the reason of dissimilarity
of the goods and services.
The opposition was also based on the grounds of the renown of the opponent's
marks, however the Board did not consider this ground, because renown of the
mark had not been recognized by the court as established by the Law, and the
matters of investigating renown of a mark do not fall into the competence of
the PTO Appeal Board.
The opposition was rejected and the opposed registration remained in force.
3) UAB "Geltonoji upe" ("the Yellow river") based on earlier
registrations of the trade name and the word trade mark GELTONOJI UPE opposed
to registration of the word trade mark GELTONOJI UPE for goods in class 30.
The opponent's trademark related to services in class 42, mainly catering services
(restaurants, bars, cafeterias, canteens, etc.). The opponent submitted evidences
in proof of his Chinese food restaurant business. The Board noted that since
the marks were identical the question of similarity of goods and services should
be considered in a wider sense. The marks were found confusingly similar. Registration
of the opposed mark was refused.
4) The Lithuanian Telegraph Agency ELTA opposed to registration of the mark
ELTA in the name of the German applicant Elta GmbH. The opposition was filed
on the grounds of article 7 p.1 par.2 of the new Law on Trademarks that provides
for invalidation of a trademark registration if it is "identical with or
similar to an earlier mark and because of the identity or similarity of the
goods and/or services covered by the marks there exists a likelihood of confusion
on the part of the public; the likelihood of confusion includes the likelihood
of association with the earlier mark". There was little discussion about
similarity of the marks. Both were written in big letters. The green colour
of the letters in the opponent's mark was not found to be essential for creating
a different overall impression. Neither of the marks contained any other elements
except for the words. The major issue under discussion was that of similarity
between the services and the goods. The opponent's registration related to "news
agency services". The opposed mark related to specific goods in class 9.
Having compared all the goods against the opponent's services the Board concluded
as follows. Audio devices for automobiles were found to be "not directly
related" with the news agency services because these were designated for
a specific use - in cars. The other audio and video devices (the particular
sphere of use of which was not specified) were found to be similar to the services
because such goods "may be used in various fields of sound and image transmission".
The opposition was satisfied in part.
5) The issue of similarity of goods was also considered in the majority of
the other oppositions that were considered during the period that is being reviewed
here. We would like to summarize some other findings to demonstrate the Board's
approaches to the issue of similarity of goods and services:
a) Class 5 - practically all pharmaceuticals independent of the designated purpose
of use are considered similar, particularly if any of the compared marks relates
to the whole class without specification of particular preparations it is actually
used for.
b) Chemicals in class 1 not similar to goods in class 5 in a similarity conflict
where a mark in class 5 was compared with a mark registered for goods in classes
1 and 5.
c) Class 30:
d) Beer in class 32 not similar to alcoholic drinks in class 33.
d) other classes:
6) The local holder of the mark ARISTOKRAT opposed to registration of the mark THE ARISTOKRAT. The earlier opposing mark was registered for alcoholic goods in class 33. The opposed mark was registered for the same goods and also for services in class 35: the bringing together, for the benefit of others, of a variety of goods, enabling customers to conveniently view and purchase those goods; advertising. The marks were found to be similar. With regard to similarity of goods and services the Board noted that since the opposed mark was registered for goods in class 33 it might be concluded that the services were also connected with those goods. Consequently, the goods of the opposing mark were found similar to the listed services in class 35. Registration of the opposed mark was invalidated in both classes. The decision was appealed before the court.
7) The local holder of the mark BLACK JACK opposed to registration of the mark
JENTLEMAN JACK. The opposing mark was registered for goods in class 30 ("tea"),
the opposed mark for alcoholic drinks. The goods were found to be dissimilar.
Besides, both marks were registered for retail trade services in class 35. Though
there was no detailed specification of the services, the Board concluded that
those services in each of the registration were directly connected with those
goods each mark was registered for. Consequently, the services were also found
dissimilar. The opposition was rejected.
8)
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Opposing Marks
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Opposed Mark
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The holder of the word marks ELECTROLUX (inter alia in classes 7, 8, 9, 10, 11) and LUX (in classes 7, 9, 11) as well as the holder of the word-figurative mark TRILUX (in classes 9 and 11) filed oppositions against registration of the mark TRILUX for goods in classes 7, 8, 9, 10, 11 and services in class 35. Since both oppositions were filed against the same mark, they were considered jointly. The Board found the marks ELECTROLUX and TRILUX dissimilar. Motivating this finding the Board noted that the words were different in length, had different beginnings, etc.. Besides, the element "tri-" in the opposed mark might be perceived as a numerical characteristic - "three", while "lux" was a weak element: in Latin it means "light" and it is the name of the unit of light. The marks TRILUX and LUX were found similar - both were short, the opposed mark fully incorporated the opposing mark, the graphic elements in the opposed mark were found to be insignificant in their impact on the overall perception. The word-figurative marks TRILUX were found similar. Since two of the opposing marks: LUX and TRILUX - were registered for identical and similar goods in classes 7, 9, 11 registration of the opposed mark in these classes was invalidated. The opposed mark was also invalidated in class 35 ("wholesale trade management") because the services were found to be directly connected with the specified goods. The opposed mark for goods in classes 8 and 10 (8: electrical depilatory appliances; shaving appliances; electric manicure sets; electric razors; electric nail clippers; electric clippers; 10: massage apparatus and devices; inhalers - remained in force. Motivating this decision the Board noted that Goods in classes 8 and 10 are mainly designated for professional consumers. Besides, goods in class 10 are for medical use and are sold through other channels than goods in classes 7, 9, 11.
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INTELS-LITHUANIA |