Chio pita / Chipitta : no likelihood of confusion according to the Second Board of Appeal of the OHIM
26.01.2003
In the case R 1022/2000-2, the Second Board of Appeal of the OHIM rejected the opposition against the application for a complex trademark Chipitta
In the case R 1022/2000-2, the Second Board of Appeal of the OHIM rejected the opposition against the application for a complex trademark Chipitta to designate Potato chips, breads and cereal preparations cooked out of cereals on the basis of the German trademark Chio pita.According to the Opposition Division, there was a likelihood of confusion because of a visual and phonetic similitude.In particular, it rejected the argument that PITTA is a descriptive term which should be disregarded when comparing the two signs as "PITTA has not found its way into everyday speech in Germany and is not included in the DUDEN dictionary."An appeal against this decision was decidedAccording to the Second Board of Appeal, "there are sufficient differences between the two marks to make confusion is unlikely".Visually, the Second Boar of Appeal underlines the importance of the figurative element of the European Trademark Application : a black disk, and the fact that the application contains only one word.Phonetically, the opponent’s trademark of contains an extra syllable the German consumer will pronounce clearly.But it is mostly on the conceptual level that the Second Board of Appeal reveals significant differences: indeed, according to the Board, "it is clear that a certain section of German consumers (i.e. those who are familiar with foreign food specialties) will see the term as a reference to a type of Turkish bread."Thus, without concluding that the term is descriptive, the Second Board of Appeal considers that "the overall impression given by the marks, bearing in mind in particular their distinctive and dominant component, the Board is satisfied therefore that the marks are not likely to be confused".
