Earlier this calendar week the Court of First Instance (CFI) dismissed an appeal against the Board of Appeal's determination inwards L'Oreal's FLEXI AIR application, inwards Case T-112/03 L’Oreal SA v OHIM.
L'Oreal had applied to register equally a Community merchandise order the words FLEXI AIR for shampoos as well as pilus preparations (Class 3). Revlon opposed, citing the likelihood of confusion amongst its before French, Swedish as well as United Kingdom of Great Britain as well as Northern Ireland registrations of the discussion order FLEX for much the same goods. Although the Opposition Division invited Revlon to submit farther bear witness as well as gave L'Oreal a deadline for receiving its response, neither bear witness nor observations were received. Somewhat also late, L'Oreal asked for proof of genuine piece of job of Revlon's FLEX mark. The Opposition Division declined to accept concern human relationship of that asking or of belatedly observations submitted to it as well as rejected the application on the dry reason of likelihood of confusion. L'Oreal's appeal to the Board of Appeal having failed, the cosmetics giant appealed farther to the CFI.
Flexing its muscles ... but L'Oreal actually must pay to a greater extent than attending to the time
In its appeal L'Oreal contended that (i) the Board of Appeal was incorrect to spend upward to let L'Oreal's asking for proof that Revlon's order had been used; (ii) the Board was incorrect to conclude that in that place was a likelihood of confusion as well as (iii) the Board should cause got considered whether Revlon's FLEX order could validly endure set forwards inwards opposition nether U.K. law.
Revlon's FLEX: practiced for removing unwanted competing marks?
The CFI dismissed L'Oreal's appeal. The Board of Appeal was entitled to adopt a determination which rejected the asking for proof of genuine piece of job where L'Oreal had non justified the failure to submit that asking inside the fourth dimension restrain prepare yesteryear the Opposition Division. The Board was also entitled to accept the stance that FLEX as well as FLEXI AIR were similar at visual, phonetic as well as conceptual levels. The in conclusion declaration of L'Oreal was also dismissed: it was based on the hypothesis that the Community Trade Mark Regulation 40/94 conferred on the proprietor of an before national merchandise order greater rights inwards connector amongst an application for a Community merchandise order than those conferred on him yesteryear the national legislation governing that before mark. This was non the case: national laws of fellow member states governing likelihood of confusion betwixt a merchandise order applied for as well as an before national order were fully harmonised. In those circumstances, L'Oreal's hypothesis was wrong.
thinks the legal bits of this determination are right, but wonders whether the "likelihood of confusion" fleck is right. FLEXI AIR is iii syllables to FLEX's one; it is pronounced quite differently too. Conceptually, the mutual "flex" fleck sounds a fleck allusive to pilus beingness flexible rather than rigid. Merpel agrees: cognoscenti of hair-care products are quite capable of distinguishing products bearing these brands.
Hair attention here and here
Hair-raising activities here and here
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