Consumer Perception and Trade Mark Distinctiveness: ”A” (figurative) vs. ”A” (figurative)

The average consumer is considered reasonably well-informed, observant, and circumspect. It is essential to recognize that the attention level of consumers can vary depending on the type of goods or services. For instance, in the present case, where the identical goods are targeted at the general public, the degree of consumer attention is deemed average.

Examination of Trade Marks

The earlier mark under consideration features a standard uppercase white letter ‘A’ superimposed on a dark blue shield. The contested sign, however, can be interpreted differently by the public. Some may see it as a position mark on the side of a sports shoe, depicted by a stroke forming an angle, crossed below its edge by an oblique line inclined to the left. Others might perceive it as a stylized representation of the capital letter ‘A’. Additionally, a segment of the public may view the contested sign as an abstract figure without attributing any specific meaning to it.

Methodology for Comparing Signs

When comparing signs, the focus is not on meticulous side-by-side examination to identify specific verbal or figurative elements. It is irrelevant whether a verbal or figurative element is recognized only with the aid of the other mark since consumers typically do not compare signs directly. Furthermore, the perception of the relevant public, rather than the applicant’s intentions, is crucial in the assessment. Thus, the fact that the applicant named the contested sign as ‘A’ does not automatically mean that the public will perceive it clearly as such.

Distinctiveness of Single-Letter Trade Marks

The Court has established that the distinctiveness of single-letter trade marks must be assessed based on the facts, focusing on the goods or services in question. This principle applies to both absolute grounds and inter partes cases, determining the distinctiveness of single-letter components in trade marks. Despite potential challenges in establishing distinctiveness for single letters, these circumstances do not justify specific criteria deviations.

1. Visual Comparison:
   The earlier mark’s capital letter ‘A’, depicted in white against a dark blue shield, is visually distinct from the contested sign’s laying ‘A’ with an oblique line crossing it. The differences in their visual representations create distinct overall impressions, even though both signs feature the letter ‘A’.
2. Aural Comparison:
   The pronunciation of the signs is identical, coinciding in the sound of the letter ‘A’.
3. Conceptual Comparison:
   The representation of a capital letter ‘A’ does not evoke any specific meaning related to the goods. The concept of a single letter is neutral in the context of conceptual similarity between the signs.

While the earlier mark and the contested sign share the same letter ‘A’, the differences in their visual representation are significant enough to distinguish them. The single letter ‘A’ in both marks is inherently distinctive, neither describing nor alluding to the characteristics of the goods or services. Therefore, the visual differences between the signs, particularly the positioning and depiction of the letter ‘A’, contribute to their distinct overall impressions, reducing the likelihood of confusion among consumers.