Today's Tidings From Luxembourg

The Court of First Instance (CFI) of the European Court of Justice has simply handed downwards ii novel decisions inwards appeals from the Office for Harmonisation inwards the Internal Market (OHIM) today. Both appeals were dismissed.

* Case T-169/02 Cervecería Modelo, SA de CV v OHIM: an application to register a figurative score contianing the words NEGRA MODELO for beers was correctly refused on the ground of likelihood of confusion amongst an before national registration of a figurative score consisting of the give-and-take MODELO for the same product. The CFI held that the OHIM Board of Appeal was right to concord that, though the marks were different, the dominant chemical component of each of them was the give-and-take MODELO.

* Case T-296/02 Lidl Stiftung & Co. KG v OHIM: this was an application to register LINDENHOF for beer in addition to other beverages which succeeded despite an opposition filed past times the possessor of an before national merchandise score LINDERHOF for sparkling wines. On the query of comparing of goods the CFI said:

"54 Sparkling wines are alcoholic drinks and, equally such, clearly distinct from non-alcoholic drinks such equally the drinks covered past times the merchandise score application, both inwards shops in addition to on drinks menus. The average consumer, deemed to hold upward reasonably well-informed in addition to reasonably observant in addition to circumspect, is used to in addition to aware of that distinction betwixt alcoholic in addition to non-alcoholic drinks, which is, moreover, necessary, since to a greater extent than or less consumers produce non wishing to or cannot eat alcohol.

55 Furthermore, if the drinks covered past times the merchandise score application are drunkard on special occasions in addition to for enjoyment, they are too consumed, if non substantially, on other occasions in addition to for relaxation. Thus they are rather everyday consumer items. Sparkling wines, on the other hand, are drunkard nearly solely, if non solely, on special occasions in addition to for enjoyment in addition to much less oft than the goods covered past times the merchandise score application. They are inwards a much higher cost bracket than are the drinks covered past times the merchandise score application.

56 Finally, sparkling wines are no to a greater extent than than an atypical replacement for the drinks covered past times the merchandise score application. The goods inwards query cannot hence hold upward considered to hold upward inwards contest amongst each other.

57 The fact referred to past times the applicant that the goods inwards query may hold upward consumed 1 afterwards the other or fifty-fifty mixed is non such equally to alteration the findings ready out inwards the preceding paragraphs. It is truthful of many drinks which are not, however, similar (for event rum in addition to cola).

58 The same is truthful of the fact referred to past times the applicant that the advertising for the goods inwards query ever shows a mortal who enjoys a minute of happiness whilst drinking the imbibe concerned, inasmuch equally that fact applies to nearly all drinks, fifty-fifty the most varied.

59 In persuasion of the above, it must hold upward concluded that the goods inwards query are to a greater extent than different than they are similar. However, the differences betwixt them are non sufficient of themselves to exclude the possibility of a likelihood of confusion, inwards item where the score applied for is identical to an before score which is specially distinctive ...".

wrote these notes inwards a combat of a hurry in addition to volition revisit them tomorrow to run across if he got them right or non ...