Tobacco is commonly known, but Tabasco is not

When assessing whether or not trademarks can be confused with each other, it is crucial to ascertain whether or not they are similar. After all, if they do not resemble each other, no confusion will arise. Another prerequisite condition is product similarity: trademarks may be identical, but if the products are not similar, there will also be no confusion.

When assessing whether or not trademarks are similar, their visual, aural and conceptual similarities are examined. Often, the emphasis is on visual and aural similarities, but a conceptual similarity – or rather a conceptual difference – can sometimes neutralise a visual or aural similarity. If a trademark involves a word that everyone knows, consumers are unlikely to confuse it with another trademark that has a different meaning. Take LOVE as opposed to LOEVE, for example.

This defence is often invoked in proceedings. In practice, however, there is a high threshold when it comes to European trademarks. For example, if people living in Benelux (where English is commonly used) understand the meaning of an English word, this does not mean that people living in Spain or Latvia will also understand this word. What is important is whether or not a word has the same meaning throughout the European Union.

This issue was neatly illustrated by a recent ruling in an opposition case concerning TOBACCO versus TABASCO. TOBACCO refers to the plant from which tobacco is made, while TABASCO is a pepper sauce. The European Trademarks Office stated that the word TOBACCO is known throughout the entire EU, unlike TABASCO, which is a generic word for pepper sauce that not every consumer is familiar with.

But does this affect the outcome of the opposition? No, because if one trademark has a well-known meaning, this can neutralise any visual and aural similarity. According to the European Trademarks Office, the meaning of TOBACCO is widely known and therefore there is no similarity between the trademarks TOBACCO and TABASCO. The opposition was subsequently rejected.