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AMPLY (fig.) vs. AMPLITUDE
vs. AMPLITUDE
The Court finds that there is an incontestable overall visual similarity and above all the very strong conceptual similarity, as well as, to a lesser extent, the phonetic similarity, that result in a general assessment that the conflicting signs are indeed similar (para. 59):
The owner of the prior Spanish trademark “AMPLY” protected for “optical apparatus and instruments, in particular spectacles and sunglasses, sun lenses and ophthalmic lenses” in class 09 has filed opposition against the community trademark application “AMPLITUDE”, filed for “eyeglasses; lenses for eyeglasses; frames for eyeglasses; sunglasses; contact lenses” in class 09.
The OHIM’s opposition division rejected the opposition on the ground that there was no likelihood of confusion between the two conflicting trademarks. First Board of Appeal upheld the opposition and annulled the decision of the Opposition Division on the ground that there was a likelihood of confusion between the two conflicting trademarks.
The Court of First Instance found (T-9/05) that the opponent’s trademark is, with the exception of a single letter (‘y’ instead of ‘i’), included in its entirety in the younger trademark. Since the beginning of the element common to both marks plays a determinant role in the consumer’s perception of the mark, the Court founds that there exists a visual similarity between the conflicting signs taken as a whole (see para. 37, 41). Due to the common beginning of the trademarks, they are phonetically similar, but there are phonetically differences between the conflicting signs level, as the endings of the trademarks are quite different.
The Court takes the view that it is not necessary, for the relevant Spanish consumer to understand, transform or shorten the conflicting marks. The conceptual link between the meaning of the words (ampliar’ and ‘amplificar’ (amplify), ‘amplificación’ (amplification), ‘amplitud’ (amplitude), ‘amplio’ (extensive, large)), on the one hand, and the common root of the word elements constituting the conflicting marks, on the other hand, is sufficient to establish their conceptual similarity (see para. 52, 54).
As a result, the Court founds the conflicting trademarks are being similar and therefore confirms that there was, for the relevant public, a likelihood of confusion.