The matter at hand
On 7 October 2013, Harold Prantner and Daniel Giersch filed an application for registration as an EU trade mark of a figurative sign consisting of a play on the word ‘Fly’, written as: capital F, cipher 1 and a heart instead of the Y. In the European Union Trade Marks Bulletin, the name in normal script of the figurative mark read ‘Fly’. The application was opposed by FTI Touristik, owner of the earlier EU figurative mark ‘fly.de’.
The opposition was upheld by the Opposition Division, but the Fifth Board of Appeal annulled that decision, finding that there was no likelihood of confusion between the signs at issue. After the General Court dismissed the appeal against that decision, FTI Touristik appealed to the ECJ, arguing that the General Court had made an error by considering that it was unlikely that the trade mark applied for would be associated with the word ‘Fly’ due to the difference between the letter “y” and the stylised heart in the mark applied for and considering that it is unusual to replace the letter “y” with a heart symbol. In addition, the General Court would have made a methodological error by failing to take account of the name in normal script of the mark applied for, as set out in the European Union Trade Marks Bulletin.
The judgment of the ECJ
The ECJ holds that “the name in normal script of a figurative mark in the European Union Trade Marks Bulletin, whether it corresponds to the intention of the applicant for the mark in question or to the reference made by EUIPO in the Bulletin, is irrelevant for the purpose of determining the relevant public’s phonetic perception of the signs in question which should not be confused with their name in normal script in the Bulletin” (paragraph 21). The General Court therefore correctly considered that name not to be indicative of how the relevant public perceives the mark in question.
The other grounds of appeal are dismissed as merely challenging the factual analysis carried out by the General Court or for being based on a misreading of the judgment under appeal.