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    ECJ rules on proposed Community trade mark GOLDEN BALLS

    The ECJ has set aside the General Court’s judgments under Article 8(5) of the Community Trade Mark (CTM) Regulation (207/2009/EC) relating to registration of GOLDEN BALLS for dissimilar goods to those covered by BALLON D’OR. The General Court had held that there was no likelihood of confusion between the proposed GOLDEN BALLS CTM and an earlier CTM for BALLON D’OR under Article 8(1)(b) of the CTM Regulation, and had therefore assumed that the marks lacked the requisite degree of similarity for applying Article 8(5).

    The ECJ confirmed the General Court’s analysis of Article 8(1)(b) relating to registration of GOLDEN BALLS for similar or identical goods to those covered by the BALLON D’OR CTM. The General Court’s assessment of the relevant public, conceptual similarity and the distinctiveness of BALLON D’OR had been correct, and there was no likelihood of confusion between the two marks in relation to identical or similar goods.

    However, ECJ case law consistently demonstrated that Article 8(5) required a lesser degree of similarity than Article 8(1)(b). For Article 8(5) purposes, if there was any similarity at all between the marks, the court had to undertake an overall assessment to determine whether the similarity was sufficient for the relevant public to assume a link between the two, given factors such as the earlier mark’s reputation.

    As a result of the ECJ’s decision, OHIM must now reassess whether GOLDEN BALLS can be registered for goods which are different to those covered by the BALLON D’OR registration without infringing Article 8(5).

    20 November 2014 (Curia).