Are VOLVO and LOVOL conceptually similar?

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The EU General Court has dismissed appeals against OHIM’s dismissal of opposition to registration of the figurative mark LOVOL [1]. The opposition was based on the prior registration of the word mark VOLVO and figurative marks containing the word VOLVO, and on the alleged visual and conceptual similarity of the competing marks.

The General Court held that neither of the marks had any meaning and, further, the LOVOL mark was more likely to be read as Lo-vol than Lov-ol. Further, the difference between the marks, in combination with the added figurative elements of Volvo’s mark, meant there was no visual similarity. The Court also rejected the argument put forward by Volvo – on conceptual similarity – that the public would instinctively associate a new trade mark with an existing trade mark when confronted with an “invented trade mark” which bore no meaning and the idea that a consumer’s “visual dictionary” (Volvo’s words) would make a connection between the two marks.

The General Court went into an unusually elaborate discussion of conceptual similarity, not all of which is easy to follow, referring at one point of the judgment to how differences between letters of similar words activate “different neurones in the human brain” and explaining that “the distance between the English words ‘hair’ and ‘hare’ is the same as between the words ‘hair’ and ‘soup’, despite the fact that ‘hair’ and ‘hare’ are pronounced identically”.

Unfortunately, it is not easy to tell from this judgment what conceptual similarity is designed to protect and, in particular, where it leaves the position in respect of “reversed” trade marks that cover competing goods. What the case does show is the increasing creativity of opponents, in this case Volvo, in structuring arguments based on conceptual similarity.

[1] Case T-524/11