Stefano Sandri
At Luxembourg there is not the sea. Cleary, the judges of the European court are not expected to be experienced yachtsmen. However, if you look at this image, do you have any doubt we are talking about Motor yacht offshore ?
CFI , T-305 and 306/07, yet took 103 paragraphs to conclude that this mark was confusingly similar to this prior mark in respect of products of class 18 and 25.
This hesitation is due to the fact that CFI compared the marks in question merely on the visual and phonetic field. The conceptual criteria was completely undermined, although the Court quoted the case law (LIMONCELLO and MATRATZEN) whereby emerges that the dominance of an element in the frame of a complex trademark is stronger whenever the sign enjoys of a specific and clear conceptual meaning, as it has supported by my search carried out by Overmoon. Both the sign, in his case, unquestionably reminds to the idea (and in the case of the Community application to the image too) of a powerful and fast motor yacht. In this regard the fact that someone may relate the term “offshore” to something other than a nautical sport (paragraphs 78 to 85) is, in my view, totally irrelevant, for it is out of the legal context under discussion.
By chances It is to be noted that lately the Italian Supreme Court of Cassation (No.18.218, dated 18 august 2009) has granted an undertaking of the exclusive right to use and protect its name and image of a boat ( its logo) reproduced by an unauthorized competitor on the surface of one of its sailing boat, by making an extension of the application of the rules on the right of image provided for in the Civil Code for individuals. The loosing party was retained liable for damages on the perspective of an hypothetic sponsorship agreement, expressly referred to by the Court , by way of analogy, to a trademark sponsorship agreement.
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