The EU Court recently ruled on the visual and conceptual similarity between brands and, reversing the decision of the EUIPO on this point, found that the well-known Apple brand and the Pear brand cannot be confused with each other.
The story takes its cue from the opposition presented by Apple to the application for registration of the European figurative mark 'Pear', filed by Pear Technologies Ltd. Following the acceptance of the opposition, the latter lodged an appeal before the EUIPO, which confirmed but the first decision. Consequently, Pear Technologies challenged the provision before the EU Court which denied the existence of a similarity between the two signs, comparing them both visually and conceptually.
At first the EUIPO Board of Appeal recognized a remote degree of similarity between the two signs, as both represented rounded shapes of a fruit with the related stem / leaf in an identical position but the Court then came to a different conclusion.
The judge in fact observed that the two signs are visually very different from each other: in fact, they represent two distinct fruits and the one (the Apple brand) constitutes a solid form, while the other (Pear) is a set of separate objects between them; moreover, the element in the upper right corner represents in one case a leaf (Apple) and in the other a stem (Pear); finally, the word element of the Pear brand cannot be underestimated, as it has significant dimensions with respect to the shape, a different color, a particular font and is in capital letters. In conclusion, the judge ruled that the reputation of the earlier sign does not matter in a similarity judgment, and that the marks in question are visually different.
From a conceptual point of view, the Court overturned the conclusions of the Board of Appeal EUIPO, emphasizing that there is conceptual similarity only when two signs evoke images having a similar or identical semantic content.
In the present case, the EUIPO had at first considered that the two marks represented two distinct fruits but that however they were similar for biological characteristics but the court held that the signs in question evoke the idea of a certain fruit, while they recall the general concept of "fruit" only indirectly.
Secondly, he reiterated that, in many states, members of apples and pears are used in proverbs as examples of different things and not comparable, and the possible similarity in size, color or consistency (characteristics that, moreover, share with many others fruits) is however an element that can be perceived by the public only in the context of a very detailed analysis, without considering that it is unlikely to assume that the consumer is aware of their origin from the same family of plants.
Based on these considerations, therefore, the EU Court annulled the decision of the EUIPO Board of Appeal, recognizing the possible influence exercised by the reputation of the earlier trademark.