Single letter, big nuisance: comparing single-letter trade marks

16th November 2023

Trade marks composed of just a single letter have been examined by national patent and trade mark offices and the EUIPO, as well as by the General Court (GC), for a long time. The judgment in the case of ‘α’ opened the floodgates in 2010, when the CJEU found that single-letter trade marks are not devoid of distinctive character per se, and that the EUIPO should examine each case based on facts of the case, the goods or services concerned, and how the mark is perceived by the relevant public[1]. Since then, European doctrine has extended to touch upon a number of different aspects. So does a recent judgment by the GC.

Facts of the case

In the ‘Q’ judgement of 25 October 2023 (T‑458/21, Q, ECLI:EU:T:2023:671), the GC annulled a decision by the Board of Appeal (BoA) in an opposition case. The BoA had found there was a likelihood of confusion between the following trade marks, applied for (registered) for similar or identical goods and services from Classes 9, 35 and 42:

The mark applied for:

The earlier mark:

The GC identified several key errors in the BoA’s assessment, which revolved around the following issues:

Dominant and distinctive elements in single letters: where are they?

In its decision, the BoA mainly referred to the verbal aspect – namely, the letter ‘Q’ as the dominant or distinctive element of the marks that determines the overall impression they make. Whereas, referring to its own case-law[2], the GC found that dominant or distinctive elements can exist only in composite marks. Since the signs at issue consist of only one element, the GC concluded that the BoA had erred in referring to the letter ‘Q’ as the dominant or distinctive element.

Same letter = visual similarity?

Two trade marks that have the same letter as their sole verbal element will not always be visually similar. Because single-letter trade marks are obviously very short, the relevant public will easily perceive stylistic differences between them. Which is why the GC found the signs at issue visually similar only to a low degree: the earlier mark is red and in a standard font, while the mark applied for is in two colours and is highly stylised. These differences are clearly visible. In the GC’s opinion, the BoA gave too much weight to the verbal aspects of the signs, that is, to the letter ‘Q’ alone.

Distinctive or non-distinctive: the case for a single letter

The GC repeated that a single letter is capable of conferring distinctive character on a trade mark. However, the rule is that when the letter is not stylised at all, or only slightly, or when the other figurative elements of the mark are not striking, then the distinctive character of the mark is minimal, weak, or even very weak. In the case at hand, the earlier mark is only very slightly stylised, and so must be regarded as weakly distinctive. That is even though the letter ‘Q’ has no meaning in relation to the goods and services the mark covers.

Takeaways

The ‘Q’ judgment teaches that whether different single-letter trade marks are confusingly similar largely depends on their stylisation. The GC’s findings in this case are in line with existing case-law[3].

#juliakostrzewa #poland #trademarklaw #singleletter

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[1] Judgment of 9 September 2010, α, C 265/09 P, EU:C:2010:508, paras 31-39.

[2] Judgment of 23 October 2002, MATRATZEN, T‑6/01, EU:T:2002:261, para. 35.

[3] E.g., judgment of 24 January 2012, B, T-593/10, EU:T:2012:25, para. 32; judgment of 9 November 2022, K K WATER, T‑610/21, EU:T:2022:700, para. 68.