"zero" versus "Xxero"
A textbook case on phonetic similarity: two cosmetics trademarks written completely differently – and yet judged confusable, because they sound almost the same.
What was it about?
In the opposition proceedings, the trademark "zero" faced the later trademark "Xxero Luxury Cosmetics", both in the field of body care and perfumery (Nice class 3). When spoken, "tsero" and "ksero" are phonetically very close.
The German Federal Patent Court (BPatG) had to assess whether this phonetic proximity founded a likelihood of confusion despite the unusual spelling.
The pair of signs
Written differently, pronounced similarly
Likelihood of confusion affirmed
The BPatG judged the signs highly similar when spoken for identical goods – the different spelling changed nothing in the auditory impression.
What you take from it
Many people first encounter trademarks in conversation, on the phone or in advertising – that is, through sound. A "creative" spelling with unusual letters therefore does not protect against phonetic confusion.
Whoever searches only for trademarks written exactly the same misses precisely such cases. Phonetic proximity is detected only with an analysis that compares the auditory impression.
Sources
Federal Patent Court (DE), decision of 21 April 2009, ref. 24 W (pat) 37/08; documented notably by markenmagazin:recht.
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This article is for information and does not constitute legal advice.