The High Court of Cassation and Justice has held that there may be a likelihood of confusion between two marks even where the later mark has a normal degree of distinctiveness and where, although the earlier mark is not the dominant element in the overall impression created by the later complex sign, it nevertheless retains its independent distinctive character within that impression.
A mark is descriptive when it simply describes as such the goods and services for which it is used, as opposed to a distinctive mark which allows the consumer to associate a particular product or service with a particular trader because of the authenticity of the sign used.
In comparing two brands, the confusion that arises in the minds of consumers is the essential element. Thus, it may be an unauthorised use of a trade mark in the course of trade by one company and also an infringement of another company’s intellectual property rights when the later mark has multiple different elements, but which together do not give it an above-average uniqueness.
Additionally, where the later trademark takes over an identical element from an earlier trademark so that the two are visually, phonetically and conceptually the same, there may be a likelihood of confusion if the second trader does not take steps to diminish the independence of this element in the trademark as a whole.
