TRADEMARK LAW
Later registrations not expressly excluded in the assessment of the opposition
• It cannot be maintained that by not expressly excluding the Community registration in the context of its assessment of the merits of Koipe’s opposition the Court of First Instance did take it into consid-eration and thus established the principle that a later mark may be relied upon against an applica-tion for registration of a mark that has been filed earlier.
Dominant figurative element
• The Court of First Instance thus attributed to the figurative element of the marks at issue the character of a dominant element in relation to the other elements comprising those marks, in particular the word element. That enabled it correctly to base its assessment on the similarity of the signs and on the existence of a likelihood of confusion between the marks La Española and Carbonell by giving the visual comparison of those signs an essential character.
• Contrary to what the appellant contends, such an approach did not, however, mean that the Court of First Instance took no account of the impact of the word element.
• In the light of those principles, the Court of First Instance held in particular, at paragraphs 108 and 109 of the judgment under that appeal, that olive oil is a consumer product which is very common in Spain, that it is most commonly purchased in su-permarkets or establishments where goods are arranged on shelves and that the consumer is guided more by the visual impact of the mark he is looking for.
IPPT20090903, CJEU, Aceites del Sur v Koipe - Carbonell v La Espanola
