Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 2., (a)

The use of colours, images or shapes in a trademark similar to the trademark of a competitor, does not automatically constitute a misleading commercial practice.

The plaintiff offers travel packages and promotes its activities with catalogues using a trademark in the form of a blue round globe with a white and red ring around it. Within the red ring the plaintiff uses the wording "Gulivers Reisen". The defendant started using very similar catalogues with a trademark in form of a blue circle within a white and red ring using the wording "Flair Reisen". The defendant sells travels as well.

The plaintiff initiated legal proceedings as in its opinion the defendants' trademark could lead to consumer confusion as to the trader's identity for travels advertised.

Does the use of colours, images or shapes in a trademark similar to the trademark of a competitor, constitutes a misleading commercial practice?

The court first ruled that in general, to be able to speak of any similarity between trademarks, the overall impression for the average consumer is relevant.

Especially relevant, according to the court, to assess similarities in trademarks, is the wordings used within a trademark as consumers usually identify a competitor by its name.

Moreover, the court held, imaging, shape or colour, are of minor relevance.

URL: http://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Justiz&Dokumentnummer=JJT_20111018_OGH0002_0170OB00026_11I0000_000&ResultFunctionToken

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The Austrian Supreme Court denied the plaintiffs claim.