Are the below two signs confusingly similar? That is the question which recently occupied the General Court and then the Court of Justice of the EU (CJEU) in C 84/16 Continental Reifen Deutschland v Compagnie générale des établissements Michelin and EUIPO (26 July 2017) (Continental v Michelin) available here.



Both signs in question are figurative, which means that trade mark protection would relate to the specific style displayed above, rather the letter(s) in any style. In addition, the goods in relation to which Continental sought trade mark protection were similar if not identical to those for which Michelin had registered the above trade mark: both being goods relating to tyres.

The General Court (GC) found in favour of Michelin and held that there existed a likelihood of confusion between the two signs (the GC’s judgement is available here). The decision left Michelin’s single letter trade mark with a surprising broad scope of protection. Particularly in light of the well known principle in trade mark law that the more distinctive the earlier mark, the greater the likelihood of confusion. In this case, Michelin’s mark is a single letter ‘X’, which has only basic stylisation. It would therefore seem to be a prime candidate for low inherent distinctiveness. However, the GC concluded that Michelin’s mark had a normal level of inherent distinctiveness, basing its decision on the evidence of Michelin’s use of the mark.

The CJEU decision

On this point the CJEU did overturn the GC finding of a normal degree of inherent distinctiveness, on the basis that there had been a distortion of the evidence. Unusually for an assessment of inherent distinctiveness, the evidence in issue related to actual use of the trade mark. Typically, the test for inherent distinctiveness centres on the “presumed expectations of an average consumer of the goods [in question]” (Mag Instrument, para 49 available here). That is a more general assessment informed by the use of such letters in the tyre industry as a whole. However, in this case the GC’s decision turned on the evidence of actual use by Michelin itself (para 55, GC decision). As argued by the EUIPO , this would appear to be an error of law. Unfortunately, however, given the CJEU’s finding on the distortion of evidence point it did not go on to consider this issue.

Continental’s appeal to the Court of Justice of the EU (CJEU) was ultimately unsuccessful. The CJEU concluded that the GC had been entitled to a finding of a likelihood of confusion, since distinctive character is just one factor which is taken into account when making this assessment. As the CJEU’s jurisdiction to hear appeals is limited to determining errors of law or identifying a distortion of the facts or evidence, it could not have changed the outcome of this case. The GC’s decision on the likelihood of confusion was based on findings of fact and therefore was outside the CJEU’s jurisdiction.