Google has lost in its attempt to get an EU trademark registered on "GMail" according to a ruling by the EU Office for Harmonisation in the Internal Market (OHIM). The ruling is briefly covered in all the usual tech. news outlets.
Essentially Google's mark is considered to be too similar to an earlier German trademark.
"The services of the earlier mark, amongst others, are, telecommunications, particularly
services in and for electronic communication networks, like Internet or World Wide
Web, electronic mail service, dissemination of information.
The services of the contested mark are, telecommunications; communications by
computer terminals; message sending; electronic mail services.
The contested services are identical to those of the earlier right or indeed included
within the broader terms of the earlier right’s specification since they are all
telecommunications services...
The earlier figurative mark is protected in Germany. Therefore, it is the impression that
the signs make on the German public and their meaning and pronunciation in the
German language which are relevant for their comparison.
Likelihood of confusion in only one part of the Community is sufficient as a relative
ground for the rejection of the application in issue...
The Office is of the opinion that the high degree of
similarity between the marks leaves little room for small differences to be observed by
the general public. Moreover, the general public is used to companies using variations
of trade marks so they will see the contested application as a simple version of the
earlier right and believe they come from the same undertaking.
As has been discussed, the dominant elements of both marks are identical and
furthermore they are the first words to which attention is drawn. The fact that that
earlier right has additional wording is irrelevant since the relevant consumer would see
this as emphasising the “GMAIL” services due to its promotional qualities which highlight
the speed of the services concerned.
Therefore, when taking into account that the services in comparison are identical, the
Office concludes that there is a strong likelihood of confusion given the strong visual
and phonetic similarity between the marks in dispute.
Therefore, the contested CTM application is to be rejected in full due to its similarity to
the earlier German trade mark registration."
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