The Judgement of the General Court of 7 April 2016 resolves the appeal filed by the company Industrias Tomás Morcillo, S.L. against the resolution of the Board of Appeal refusing the registration of the mark requested

for part of the goods designated because of their identity with those of the earlier mark registered

The only ground the appellant alleges is infringement of Art. 8(1)(b) of Regulation Nº. 207/2009.

Firstly, the appellant claims and tries to prove a use of the mark prior to the application for registration of the earlier mark. However, the General Court declared that this was inoperative as the dates of application indicate that the “Policar” trade mark was applied for before that of the appellant.

Secondly, the appellant claimed that there is no identity between “shopping trolleys” and “apparatus for locomotion by land”.  However, the General Court upheld the judgement of the Board, on the understanding that when the goods designated by the earlier mark include the goods contemplated in the application for a trade mark, the goods are considered to be identical, with no assessment of any similarity in the light of factors such as the nature, purpose, method of use or complementary character, etc. being necessary.

Thirdly, the appellant argued the similarity between the signs as, to their understanding, they are not visually similar and have a different conceptual meaning.  The General Court determined that they are visually similar, that partial identity is not necessary to confirm the similarity, and the fact that they do not have any complete word in common does not prevent them from giving an overall impression of similarity.

Therefore, the General Court finally dismissed the plea and, as a consequence, the appeal in its entirety.