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European Trade Marks and Aural Similarity

The case of Lloyd Schufabrik Meyer & Co GmbH v Klijsen Handel BV Case C-342/97 (Times June 30, 1999) in the European Court of Justice raises an interesting question about Trade Marks.

The case points to the fact that two Trade Marks may be visually distinct from each other, but in fact sound very similar. Historically, Trade Marks have been 'seen'; they have been considered primarily in their visual aspect. For several years now, however, trade marks have been allowed for several other physical characteristics, including shape, smell, and sound.

In this case, the complainant asserted that their Trade Mark, 'Lloyd' was infringed by the use of a similar name 'Loint's.' The words clearly look different, but when spoken, the argument went (and no doubt with an appropriate accent), they sounded very similar. The companies competed head to head in the sale of shoes, and they asserted that customers would confuse the sound of the Marks, and that therefore the second Mark should be refused. The court in this case dealt only with issues of principle, asking whether a mere similarity in sound, aural similarity, was capable of such significance under the European Trade Mark Directive (First Council Directive 89/104/EEC of December 21, 1988). It would certainly sound odd to an English Ear to assert that there might be such a conflict between these particular words.

The Court held that an aural similarity could, on its own, be sufficient to cause confusion within the meaning of article 5 of the Directive. Whether it did or not, would dependent upon the entire picture which included several factors. These might be whether the sounds had any other additional connotation of meaning which might assist, and whether the Mark contained any element descriptive of the goods marked. the closeness of the Marks, and the degree of distinctiveness the Mark had already acquired in that market. The court pointed out that this could not be an exact or formulaic assessment. Each case will be taken on its merits, but the court will at least listen.

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