Fact that earlier mark is only of weak distinctive character is not of overriding importance
"41. It is necessary, in any event, to reject T.I.M.E. ART’s argument that the Court of First Instance infringed Article 8(1)(b) of Regulation No 40/94 in the present case by failing to treat the fact that the earlier national mark is only of weak distinctive character as being of overriding importance. The approach of T.I.M.E. ART in that regard would have the effect of disregarding the factor of the similarity of the marks in favour of that based on the distinctive character of the earlier national mark, which would then be given undue importance. The result would be that where the earlier national mark is only of weak distinctive character a likelihood of confusion would exist only where there was a complete reproduction of that mark by the mark applied for, whatever the degree of similarity between the signs in question (see, also, to that effect, order of 27 April 2006 in Case C-235/05 P L’Oréal v OHIM [2006] ECR I-57, paragraph 45). Such a result would not, however, be consistent with the very nature of the global appreciation which the competent authorities are required to undertake by virtue of Article 8(1)(b) of Regulation No 40/94."
Entitled to consider whether any of the marks has a clear and specific meaning
"49. In terms of that global appreciation, the Court of First Instance was entitled to consider that, in order for the conceptual difference between the QUANTUM and Quantième marks to be able to counteract to a large extent the similarities existing between them, it was necessary that at least one of the marks in question had, from the point of view of the relevant public, a clear and specific meaning, so that the public is capable of grasping it immediately."
Marketing circumstances may not be taken into account since these may vary in time
"59. As regards the fact that the particular circumstances in which the goods in question were marketed were not taken into account, the Court of First Instance was fully entitled to hold that, since these may vary in time and depending on the wishes of the proprietors of the opposing marks, it is inappropriate to take those circumstances into account in the prospective analysis of the likelihood of confusion between those marks."
IPPT20070315, ECJ, T.I.M.E. v OHIM
Case C-171/06 P - ECLI:EU:C:2007:171
