The Informed User Can Have An Imperfect Recollection

Neuman v Jose Manuel Baena Grupo SA (C-101/11 P and C-102/11 P)

The Court of Justice of the European Union ("CJEU") has recently confirmed that, when comparing the overall impression of a Community design with an earlier trade mark, the informed user may sometimes have an imperfect recollection.

History

This dispute started when Baena applied to register the following as a registered Community design (the "Design"):

Neuman applied to invalidate the Design on the basis of the following earlier Community trade mark registration (the "Trade Mark"):

The Cancellation Division of OHIM declared the Design invalid on the basis that it used a previous distinctive sign (Article 25(1)(e) of the Community Design Regulation 6/2002). The Board of Appeal subsequently declared the Design invalid for lacking individual character and not conveying a different overall impression from the earlier Trade Mark (Article 25(1)(b) of the Community Design Regulation