Relationship between trade marks and designs

1. Relationshipbetweentrademarks and designs Dr.Jur. Th. Margellos, MCIArb President of the Boards of Appeal – EUIPO Bucharest, 6 March 2018

2. WHAT IS PROTECTED UNDER THE RCD SYSTEM? • The RCD system protects the appearance of the whole or a part of a product • The RCD system does not protect: • the product itself; • the technical function of the product (patents, utility models) or the idea behind it, or • a sign used to distinguish the g & s of one undertaking from those of others (EUTM)

3. THE DIFFERENCE BETWEEN A EUTM AND A RCD? • A EUTM is a sign which serves to distinguish the goods and services of one undertaking from those of others. • A RCD is the appearance of the whole or a part of a product which is new and has ‘individual character’. • An applicant can sometimes choose which system to use, or decide to use both.

4. TRADEMARKS AND DESIGNS – THE OVERLAP Relationship to other forms of protection Article 96 CDR: The provisions of this Regulation shall be without prejudice to any provisions of Community law or of the law of the Member States concerned relating to unregistered designs, trade marks or other distinctive signs, patents and utility models, typefaces, civil liability and unfair competition. Article 16, Directive No 98/71/EC on the legal protection of designs The provisions of this Directive shall be without prejudice to any provisions of Community law or of the law of the Member State concerned relating to unregistered design rights, trade marks or other distinctive signs, patents and utility models, typefaces, civil liability or unfair competition.

5. TRADEMARKS AND DESIGNS – THE OVERLAP Definitions • Art. 3(a) CDR: ‘design’ means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product. The term ‘Product’ includes packaging,get-up, graphic symbols and typographic typefaces • Art. 4 EUTMR: A Community trade mark may consist of any signs capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging

6. OVERLAPS BETWEEN EUTM’S AND RCD’S • What is usually typically considered as a design, such as e.g. the appearance of an industrial product, packaging or get-up can often also often be registered as a 3-D trade mark. • What is usually typically considered as a figurative trade mark (a logo), can often also be registered as a graphic symbol design.

7. TRADEMARKS AND DESIGNS – THE OVERLAP - LOGOS Published RCD RCD Bulletin 2003-06 54 ES - Símbolos gráficos DA - Grafiske symboler DE - Grafische Symbole EL - Γραφικά σύμβολα EN - Graphic symbols FR - Symboles graphiques IT - Simboli grafici NL - Grafische symbolen PT - Símbolos gráficos FI - Graafiset merkit SV - Grafiska symboler 21 000022371-0001 25 EN FR 22 01/04/2003 15 01/04/2003 45 24/06/2003 11 000022371-0001 51 99 - 00

8. TRADEMARKS AND DESIGNS – THE OVERLAP - LOGOS EUTMR Status: Accepted application First language: EN Second language: FR File No.: 003126265 Filing date: 09/04/2003 Nice class: 9, 35, 38, 42 Trade mark: Individual Type: Figurative Date registration: 23/09/2004 Computer systems, computer programs and computer software…; Advertising and marketing services through electronic media…; Internet portal provider…; Design, drawing and commissioned writing, all for the compilation of web pages on the Internet…

9. TRADEMARKS AND DESIGNS – THE OVERLAP - LOGOS RCD 4213 - 0001EUTM 2705770 RCD 4502 - 0001EUTM 1838846 RCD 211 - 0001EUTM 2995736

10. TRADEMARKS AND DESIGNS – THE OVERLAP - SHAPES Examples of successful cumulative applications • RCD application No 5 221 536 : granted & EUTM application No 000 607 114 : granted Indication of products: Bottles Class 9.1 (Eurolocarno) • RCD application No 000 531 793 : granted • & EUTM application No 5 194 741 : granted Indication of products:Containers Class 09.03 (Eurolocarno) 10

11. TRADEMARKS AND DESIGNS – THE OVERLAP - SHAPES Examples of unsuccessful cumulative applications • RCD Application No000 291 067: granted & EUTM Application No 4 273 439: rejected • Indication of products: • Automatic gambling machines • Class 21.03 (Eurolocarno) • RCD Application No 000 181 466: granted & • EUTM Application No 4 174 074 : rejected • Indication of product: • Bottles • Class 9.1 (Eurolocarno)

12. A new 3-D trade mark may often be found not to be distinctive, in which case it can not be registered as a EUTM, but it might very well be registrable as a RCD (often e.g. the form of a packaging). • On the other hand a design which is not new (less than 12 months) is invalid as a RCD, but it can often be registered as a EUTM (e.g. old logos) as novelty is not a requirement for a EUTM.

13. DESIGN VS TRADE MARK • Earlier CD constitutes ground for invalidity against younger CTM (Art. 53(2)CTMR) • A Community trade mark shall also be declared invalid where the use of such trade mark may be prohibited pursuant to another earlier right under the Community legislation or national law governing its protection, and in particular: • (d) an industrial property right • Earlier CTM constitutes ground for invalidity against younger CD • Art. 25(1)(b) CDR in combination with Art.5(lack of novelty) and Art.6 CDR (lack of individual character) • Art.25 (1)(e) CDR: if a distinctive sign is used in a subsequent design, and Community law or the law of the Member State governing that sign confers on the right holder of the sign the right to prohibit such use

14. DESIGN VS TRADE MARK R 1482/2010-3 –BoA decision of 7 November 2011 PACKAGING RCD Invalidity Application No ICD 7022 Polish Trade marks Michałki (word mark) No R 162781 Figurative trade marks No R138955 and No R 138954 No 001019764-0001 Filing date: 15/10/08 Goods: Cakes and sweet bakery, chocolate bars, sweets, chewing gum, biscuits, caramels, fondante, pralines, jellies, sweets, wafers, confectionary products. Products: boxes, cases, containers, tins or cans

15. DESIGN VS TRADE MARK Decision based on the Polish trade mark No R-162781 for the word ‘michałki’ • a) Use of the earlier mark in the contested CTM RCD includes the word «michałki» which is the sole element of the earlier Polish trade mark and is not negligible in the overall impression of the RCD. • b) Right to prohibit such use The relevant provisions are those of the Polish Industrial Property Law of 30 June 2000: The consolidated text of the Act, Journal of Laws No. 119/2003 text 1117, as amended by act of 23 January 2004 (Journal of Laws of 2 March 2004 No. 33 text 286), and in particular Article 296 of that law, according to which the proprietor of the mark has the right to prohibit the use of its sign [in the subsequent design] only where, because of the identity or similarity of the goods or services covered by the trade mark and those covered [by the subsequent design], there exists a likelihood of confusion in the part of the public.

16. DESIGN VS TRADE MARK Relevant consumer • In the present case, the goods covered by the earlier mark were directed at the public at large. For the purpose of a global assessment, the average consumer of the category of goods in question is deemed to be reasonably well informed and reasonably observant and circumspect. • Furthermore, since the earlier mark in question is a trade mark registered in Poland, the relevant territory for the purpose of analysing the likelihood of confusion is Poland. Therefore, the impression that the contested RCD and the mark make on the public in this territory is relevant (see judgment of 12 may 2010, T-148/08, ‘Instruments for writing’, para. 108). Assessment of the LOC

17. DESIGN VS TRADE MARK Assessment of the LOC Comparison of the marks • The average consumer’s attention will be drawn to the word ‘michałki’ in the RCD on account of its central position, its letters that are larger than the remainder of the word elements, and the fact that the semi circle is flanked by thin pale green horizontal lines. The wording ‘TRADYCYJNE’ meaning ‘traditional’, commonly used to denote established methods of elaborating products and ‘od 1923’ meaning ‘from 1923’ designating the period of establishment of the undertaking are not distinctive elements. The word ‘michałki’ is the plural diminutive form of the Polish first name ‘Michel’ (Michael). ‘Hanka’, will be perceived as a name in feminine form. ‘Hanka’ does not, however, overshadow or prevail over the word ‘michałki’, which is at least striking; The Board, therefore, considers that the word ‘michałki’ plays an independent distinctive role in the RCD. • Accordingly, insofar as the RCD includes the word ‘michałki’, which is the sole element of the earlier Polish trade mark, the RCD is clearly, visually, phonetically and conceptually similar to the earlier trade mark from being discernable in the contested RCD.

18. DESIGN VS TRADE MARK Assessment of the LOC Comparison of the goods • In the present case, the contested design was registered for ‘boxes, cases, containers, (preserve) tins or cans’. • the products on which the contested RCD is intended for may be used to package any of the goods protected by the earlier trade mark. ‘Cakes and sweet bakery, chocolate bars, sweets, chewing gum, biscuits, caramels, fondante, pralines, jellies, sweets, wafers, confectionary products’ are commonly packaged in ‘boxes, cases, containers, (preserve) tins or cans’. • There is, therefore, a complementary relationship between the use of the packaging and the marketing of any of the Class 30 products. The goods at issue may be considered similar.

19. DESIGN VS TRADE MARK • Taking into account the similarity of the RCD and the earlier mark and the similarity of the products in which the design is intended to be incorporated and the earlier mark’s goods, there is a likelihood of confusion within the meaning of Article 296 of the Polish Industrial Property Law. Conclusion The contested RCD is declared invalid on the basis of Article 25(1)(e) Likelihood of confusion

20. DESIGN VS TRADE MARK Case R 1323/2008-3 - Sitting figure BoA decision of 14 October 2009 Registered on 07/11/00 For distinguish ‘clothing’ and other goods in classes 25, 28 and 32 CD No 000426895-0002 Filed on 07/11/05 Registered on 27/12/05 For ‘T-shirts (ornamentation for –), caps (vizored –) (ornamentation for –), stickers (ornamentation for –), printed matter, including advertising materials (ornamentation for –)’ Application for declaration of invalidity (18 February 2008) CTM No 1 312 651

21. TRADE MARKS AND DESIGNS – THE CONFLICT Case R 1323/2008-3 - Sitting figure BoA decision of 14 October 2009

22. Informed user DESIGN VS DESIGN R 1323/2008-3, Decision of 14 October 2009 BoA decision: • The informed user is a person who usually makes use of the class of product within which the contested Community design is incorporated. However, said person is better informed than an average person concerning said class of goods by reason of the fact that the former has a certain interest in the goods, has visited stores selling said class of goods, or has read publications (magazines, advertising leaflets, information on the Internet, etc.) concerning said class of goods. • The informed user of T-shirts and caps is someone who customarily purchases this type of article, that is to say young people, in the main. Stickers target a rather younger public, which collects stickers or uses them to personalise objects such as backpacks, exercise books, etc. The informed user of ‘printed matter, including advertising materials’ may correspond to a variety of profiles: collectors of picture cards, readers of comic books, etc. “Personnageassis”

23. DESIGN VS DESIGN R 1323/2008-3, Decision of 14 October 2009 BoA decision: • There is a difference of the expression on the figures’ faces, but it is one that has little adverse effect on the overall impression produced by the two designs on the informed user. In the opinion of the Board, the overall impression is generated more by the way in which a figure and the latter’s general features are represented than by facial expression, which is very variable: the same figure may perfectly easily have a calm expression and, shortly afterwards, an angry expression. It is not the facial expression that will have an impact on the informed user but, as just mentioned, the technical way in which the drawing is depicted and the general appearance of the figure: the single line, the fact that the figure is facing to the right, the rounded drawing, the round, black eyes gazing downwards, the sharply pointed head, and the seated position with one leg bent and the other extended. • Despite the differences that exist between the two designs, the Board finds that the subsequent design does not produce, on the informed user, an overall impression that differs from that produced by the design disclosed earlier. “Personnageassis”’ Informed user

24. Overall impression DESIGN VS DESIGN Case T-513/09, Judgment of 16 December • The overall impression is to a large extend determined by the figure’s facial expression • The figure’s facial expression constitute a fundamental characteristic which will be kept in memory by the informed user • That expression, together with the position of the body giving the impression of certain degree of irritation by its leaning out at front will lead the informed user to identify the earlier design invoked in support of the application for invalidity, as of an agitated person, which he will retain in his memory after visualising that design. On the other hand, the global impression created by the contested design is not characterised by the manifestation of a sentiment of any kind, whether in the facial expression or in the position of the body that is inclined backwards • The difference in the facial expression will be apparent to the young persons buying T-shirts and caps. It will be more important to children using stickers to personalise objects, who are more disposed to paying greater attention to thefeelings expressed by characters on such stickers • The facial expression combined with the different position of the body are sufficient for creating a different overall impression on the informed user • BoA’s decision annulled “Personnageassis”’

25. TRADEMARKS AND DESIGNS – THE CONFLICT Cleaning device • Judgment of 25 April 2013 in Case T-55/12 • Earlier 3-D CTM Challenged RCD • For Class 3- ‘cleaningagents’ For ‘cleaningdevices’ • Class 21- ‘equipment and containers for cleaning’ • No need for ‘use’ to be of a ‘full and detailed’ reproduction of the earlier sign because of imperfect recollection. • ‘Cleaning devices’ were identically listed => LOC • The validity of the earlier mark cannot be called in question in invalidity proceedings regarding a RCD • Earliermarkmust be presumedhaving at least a minimumdegree of distinctivecharacter • Theshape of thecleaningdeviceappears to be suficientlyunusualcompared to thenorms of the sector and suficientlystrikingthat, whenthatdesignisused, therelevantconsumerwillperceiveit as anindication of theorigin of theproduct

26. R 120/2009-3 – BoA Decision of 18 November 2012 SHOE DESIGN VS TRADE MARK RCD Spanish trade mark No 794870-0003 No 3 783 073 Products: Footwear Goods: Footwear

27. DESIGN VS TRADE MARK R 1341/2010-3 – FOOTWEAR DECORATIONS • The Community design represents a shoe on which there is likewise a figurative sign, the structure of which resembles that of an upper-case ‘H’; • The differences do not prevent the earlier trade mark potentially being perceived, visually, aurally and conceptually, in the Community design; • Since the signs are similar and the goods are identical, the conditions are met for the trade mark proprietor to be able to exercise its exclusive right against the proprietor of the design pursuant to Article 9 CTMR

28. TRADEMARKS VS DESIGNS – THE CONFLICT Packaging Appeal R 130/2015-3, Decision of 26 November 2015 Earlier word marksChallenged RCD IR No 572 691, No 219 934, Cypriot TM 9857, Greek TM 89 687 CRUNCH Forthefollowinggoods: ‘[v]egetables, fruits, meat, game, poultry, fish and seafood products, all these goods in the form of extracts, soups, jellies, pastes, preserves, prepared meals and frozen or dried preserves as well as in crunchy form; jams and marmalades; eggs; edible oils and fats; mayonnaise; protein preparations for nutritional purposes’ in Class 29 For ‘packaging’ and ‘[c]offeeand coffee extracts, artificial coffee and artificial coffee extracts, mixtures of coffee and chicory; tea and tea extracts; chocolate and chocolate preparations, cocoa and cocoa-based preparations; confectionery, chocolate products; sugar; sugar confectionery, sweets, caramels, chewing gum; flours, food preparations made with cereals, bread, biscuits, cakes, pastries; edible ice sorbets, products for making edible ices and sorbets, frozen cakes; honey and honey substitutes, desserts, puddings’ in Class 30.

29. TRADEMARKS VS DESIGNS – THE CONFLICT Packaging Appeal R 130/2015-3, Decision of 26 November 2015 • This similarity derives from the complementarity relationship between foodstuffs and their packaging since the latter is nigh on essential for the marketing of the former. • The earlier IR is under assessment in relation to the protection granted in Spain. Therefore, it is the impression made on consumers in the Spanish market that is relevant. The earlier goods are marketed to the general public and not only to a specialised or particular sector of society. • Therefore, given the visual and aural coincidences described above, the earlier IR and the contested RCD are deemed to be similar.

30. TRADEMARKS VS DESIGNS – THE CONFLICT Packaging Appeal R 130/2015-3, Decision of 26 November 2015 • When a consumer seeks to repeat or avoid a purchase of the foodstuffs sold under the earlier IR, they will look for a ‘CRUNCH’ product, and pay only an average degree of attention. Thus, if a consumer were to be confronted by the contested RCD used on packaging for one of the foodstuffs for which the earlier IR is registered, they may well assume that the product originates from the invalidity applicant. This is because packaging is one of the primary places where companies affix their trade marks.

31. DESIGN VS TRADE MARK Cases R 1143/2015-3 – ‘Cornet’ BoAdecision of 12 September 2016 IR No 1148957 designating, inter alia, Bulgaria Registered on 10/07/12 For Cocoa, cakes, chocolates, chocolate creams, cakes with cocoa milk, chocolate cream in class 30 CD No 002343244-0002 Application for declaration of invalidity (12 February 2014) Registered on 25/11/13 For ‘boxes[packaging]’ in class 09-03 of The Locarno Agreement

32. DESIGN VS TRADE MARK Cases R 1144/2015-3 - ‘Cornet’ BoAdecision of 12 September 2016 CD 002343244-0001 Application for declaration of invalidity (12 February 2014) IR No 1148957 designating, inter alia, Bulgaria Registered on 10/07/12 For ‘Cocoa, cakes, chocolates, chocolate creams, cakes with cocoa milk, chocolate cream’ in class 30 Registered on 03/12/13 ‘ice cream cornets [edible] (packagings for)’ in Class 09-05 of the Locarno Agreement

33. BoA’s Decision DESIGN VS TRADE MARK - R 1143/2015-3, Decision of 12 September 2016 “Cornet” Relevant public • The goods of the earlier trade mark are directed to the general end consumers. The goods of the contested design target professional consumers of the confectionery industry.Thelevel of awareness of the general consumers is at most average, the one of the professional consumers is enhanced. Comparison of goods • The product indicated by the RCD is ‘Boxes [packaging]’.The box is intended for the storage and presentation of edible cones, generally filled with creamy ingredients (with or without chocolate, frozen or not). The earlier trade mark is registered among others for ‘chocolate creams’ in Class 30. Those chocolate creams need to be packed in order to be sold and they are often presented in edible cones and those in boxes such as the ones subject to the contested design. It follows that both products arecomplementaryand on that account similar. Comparison of signs • The earlier sign consists of the term ‘OZMO’, in a colourful fancy script and below the English term ‘cornet’, which describes ‘a cone-shaped wafer container for ice cream’ (Collins English Dictionary). Its translation into Bulgarian is ‘корнет’, transliterated ‘kornet’. The English term ‘cornet’ is therefore understood by both, the Bulgarian general public, as well as the Bulgarian professional public in the ice-cream sector. Consequently, the earlier sign is dominated by the distinctive element ‘OZMO’; the element ‘cornet’ plays only a minor role in the comparison of the signs due to its non-distinctive character.

34. DESIGN VS TRADE MARK- R 1143/2015-3, Decision of 12 September 2016 “Cornet”’ BoA’s Decision • The contested RCD consists of a packing or presentation box for cornets. The box has different graphic ornaments, among others the distinctive representation of a rabbit as well as the verbal elements ‘BOBO’ and ‘cornet’. For the reasons set out above, the element ‘cornet’ plays only a minor role in the comparison of the signs. • Similarity of signs: • Visual: The signs share only the non-distinctive element ‘cornet’, while they are dissimilar with respect to any other aspect. • Phonetic: Despite the fact that both share the same vowels, the signs sound totally different. The non-distinctive verbal element ‘cornet’ will not be pronounced at all, since consumers tend to short signs. • Conceptual: Both signs refer to a cornet, reinforced in the contested design through the representation of a box for cornets. The first verbal elements of the signs are meaningless for the Bulgarian consumers. Thus, the signs share the concept of a cornet. The earlier sign and the RCD are only conceptually similar since they both refer to the concept of a ‘cornet’, which is non-distinctive and descriptive. They are dissimilar with respect to the visual and aural comparison. No LOC ; Invalidityrequestrejectedon the basis of Art, 25(1)(e) CDR.

35. DESIGN VS TRADE MARK - Case T-793/16, Judgment of 7 February 2018 ‘Cornet’ GC’s Decision Relevant Public • The Board of Appeal was incorrect to find that that packaging was, in the vast majority of cases, intended for professional consumers in the confectionery industry and not also for the general public, like the goods covered by the earlier mark. • The relevant public of the box portrayed by the contested design is not only intended for professional consumers in the confectionary industry but also for the general public. • As the earlier mark is an International Registration designating Bulgaria, account must be taken of the perception of the general public in Bulgaria. • As the good in question are confectionary goods, the level of attention of the relevant public will be somewhat reduced. Comparison of goods • The use of the goods designated by the earlier mark is, at the very least, important for the use of the box portrayed by the contested design, Thus, there is a close connection between them which is indicative of their complementarity and, therefore, their similarity.

36. GC’s Decision DESIGN VS TRADE MARK - Case T-793/16, Judgment of 7 February 2018 ‘Cornet’ Comparison of signs The word ‘cornet’ • It is common ground that, first, the word ‘cornet’, common to the signs at issue, may refer, in particular in English, to a musical instrument and an ice cream cone and, second, that word does not exist in Bulgarian, so that it has no meaning as such for the general public in Bulgaria. • It is also common ground that the Bulgarian language contains, on the other hand, the word ‘корнет’, which is transcribed into the Latin alphabet as ‘kornet’, and that that word refers to a musical instrument. However, that word does not refer to an ice cream cone.

37. GC’s Decision DESIGN VS TRADE MARK - Case T-793/16, Judgment of 7 February 2018 ‘Cornet’ • Thus, only Bulgarian consumers with a knowledge of English will understand that that word designates the goods wrapped in packaging in the form of a cone portrayed by the contested design and the goods covered by the earlier mark. • It has not been established that that word forms part of the basic vocabulary in English or in any other language which will be understood by a large part of the relevant public. • For Bulgarian consumers who do not know English or any other language in which that word exists with the same meaning, that word does not form part of their language.

38. GC’s Decision DESIGN VS TRADE MARK - Case T-793/16, Judgment of 7 February 2018 ‘Cornet’ The visualcomparison • The element of the contested design composed of the words ‘bobo’ and ‘cornet’ is the one which will capture the relevant public’s attention the most and, therefore, will have the greatest influence on the overall impression conveyed by the design. • In that regard, the element composed of the words ‘bobo’ and ‘cornet’ and the earlier mark have considerable similarities. Indeed, they are both made up of two words, ‘bobo’ and ‘cornet’, and ‘ozmo’ and cornet’, respectively. The word ‘cornet’ is therefore common to both. It appears, depending on the sign at issue, under the word ‘bobo’ or under the word ‘ozmo’. • Moreover, the words ‘bobo’ and ‘ozmo’ are of the same length and each contains the letter ‘o’, which appears twice, once at the end of each word. Those words are in capital letters and in very similar fonts and both of them create an effect of depth. The letters of which they are made up overlap in part in both signs. • The word ‘cornet’ is written in both signs in a font which the relevant public, will perceive as identical. • The proportions between the words ‘bobo’ and ‘cornet’ in the contested design and between the words ‘ozmo’ and ‘cornet’ in the earlier mark appear to be identical.

39. GC’s Decision DESIGN VS TRADE MARK - Case T-793/16, Judgment of 7 February 2018 ‘Cornet’ • Similarity of signs: • Visual: the elements which differentiate the signs at issue visually do not outweigh the considerable similarities between those signs that will be perceived by consumers who will only rarely have the opportunity to make a direct comparison of the different signs and must place their trust in the imperfect picture which they have retained. • Phonetic: the difference in pronunciation identified by EUIPO as a result of the consonants in the words ‘bobo’ and ‘ozmo’ and the reference to the fact that word ‘cornet’ is not especially distinctive are insufficient to preclude an average degree of similarity. The words ‘bobo’ and ‘ozmo, irrespective of how they are pronounced, contain two syllables, each of which contains the sound ‘o’. The signs at issue have an average degree of phonetic similarity.

40. GC’s Decision DESIGN VS TRADE MARK - Case T-793/16, Judgment of 7 February 2018 ‘Cornet’ • Similarity of signs: • Conceptual: • It is common ground that the words ‘ozmo’ and ‘bobo’ have no meaning for Bulgarian consumers. • The Board of Appeal was correct to point out that the signs at issue are conceptually similar because they have in common the element ‘cornet’. • However, that conclusion applies only as regards the part of the relevant public that understands the meaning of the word ‘cornet’, which does not exist in Bulgarian. • Indeed, the part of the relevant public that does not understand the meaning of that word cannot attribute any particular meaning to the signs at issue. • Accordingly, it is not possible to make a conceptual comparison of the signs. • The signs at issue are conceptually similar for the members of the relevant public who understand the meaning of the word ‘cornet’ For that part of the public that does not attribute any meaning to that word, there can be no conceptual comparison of the signs.

41. GC’s Decision DESIGN VS TRADE MARK - Case T-793/16, Judgment of 7 February 2018 ‘Cornet’ Signs at issue similar overall • There is a likelihood of confusion on the part of the relevant public that might believe that the goods represented by the contested design and those covered by the earlier mark come from the same undertaking or from economically-linked undertakings. • BoA’s decision annulled.