Just Short of the Mark: R 362/2024-2, SEVEN SPA v Jakob Simon International GmbH

How broad is the scope of protection in two letter stylised marks? This was the question that the EU Board of Appeal (“EU BoA”) had to determine in SEVEN SPA v Jakob Simon International GmbH.

Seven Spa appealed the EUIPO’s 2023 decision to dismiss their opposition of Jakob Simon International Gmbh’s (“Jakob Simon”) application of their two letter, stylised trade mark. Both marks were registered for identical goods in class 18 (namely, handbag, wallets, luggage etc.).  The EU BoA upheld the EUIPO’s decision, agreeing that there was a low likelihood of confusion between the following two trade marks:

    The Jakob Simon Mark

The Seven Spa Mark

EU BoA’s Findings:

The EU BoA agreed with the EUIPO’s assessment that the EU public are likely to read left to right or top to bottom. With this in mind, there exists key differences in the articulation of the letters, leading to a low level of visual and phonetic similarity.

Within the context of the fashion industry, the EU BoA found that there was unlikely to be a likelihood of confusion as there are a finite number of letters and so the public are more likely to notice the difference between marks consisting of only two of these letters.

Comment:

The EUIPO guidance on 2 letters marks recognises that any comparison between trade marks reckons on their stylisation and if their “overall graphical representation eclipses the common verbal element”.

The stylisation of the two marks in question demonstrates the relevance of the way in which they are read and said: two marks utilising the same two letters does not alone guarantee a high level of conceptual similarity.

For anyone looking to trade mark a two letter logo, it is important to consider that any stylisation could potentially narrow the level of protection – it is more likely to be seen as conceptually, visually and phonetically different to other (seemingly identically comprised) marks.