The judgment concerns an appeal against a decision of the Board of Appeal of the EUIPO relating to opposition proceedings concerning an international registration designating the European Union obtained for a figurative sign based on the letter “k”, where the opposition was based on four earlier national figurative marks (registered at the Benelux Office for Intellectual Property) always based on the same letter “k” and for identical services.

With regard to phonetic similarity, the Court held that, to the extent that the relevant public is able to distinguish the letter 'k' in the mark applied for and in the earlier national mark, the two marks can be pronounced in the same way. Therefore, it must be stated that, contrary to what the Board of Appeal found in this regard, the conflicting marks are phonetically identical.

Regarding the conceptual similarity of two trademarks consisting of the same and single letter, recalling the jurisprudence of the Court of Justice of the EU, the Court stated that the graphic representation of a letter, in the mind of the relevant public, can recall a well-defined entity distinct, i.e. a particular phoneme. In this sense, a letter refers to a concept.

It follows that a conceptual identity can exist between signs when the latter refer to the same letter of the alphabet.

In relation to the global assessment of the risk of confusion, still recalling the jurisprudence of the Court of Justice of the EU, the Court stated that the level of attention of the public concerned certainly constitutes an element to be taken into consideration in the assessment of the risk of confusion. However, it cannot be accepted that there are cases in which, due to the level of attention of the public concerned, any risk of confusion and, therefore, any possibility of application of this provision can be excluded a priori.

The fact that the public in question will be more attentive to the identity of the producer or supplier of the product or service it intends to purchase does not mean, on the other hand, that it will examine in detail the brand it will find in front of it or that it will compare it meticulously with another brand. Indeed, even for an audience that has a high level of attention, the fact remains that the people who are part of it rarely have the possibility of making a direct comparison of the various brands, but must rely on the imperfect image they have maintained of them in memory.

Among the relevant factors that can be taken into account in the global assessment of the risk of confusion is also the distinctive character of the earlier mark. However, even assuming that an earlier mark possesses a lower than average degree of intrinsic distinctiveness, this possibly weak distinctive character does not, in itself, prevent the finding of the existence of a likelihood of confusion.

In any case, even in the presence of an earlier mark with weak distinctive character, a risk of confusion may exist, in particular, due to a similarity of the signs and the goods and services considered.