H&M against H&C

It is a standard rule in trademark law that the consumer focuses on words in a trademark. Words, with the exception of very descriptive words, are often the dominant part of trademarks.

If there is a logo, does it make sense to register this logo if the word is still dominant? Yes, usually there are graphical elements that, apart from the word, are distinctive. This can be, for example, a color, font, separate graphic element, etc. In the trademark law cases where words are only moderately similar, a similarity in the graphical elements can be decisive.

A recent example. H&M filed an opposition against the trademark application H&C. The opposition was based on its device mark. The words H&M and H&C are visually not very similar. But because of the red letters, the font, the placement of the & sign, the EUIPO found the overall impression of the logos very similar. H&M did also demonstrate the enhanced distinctiveness by intensive use of their trademark, nevertheless, even without this larger scope of protection we are convinced that the opposition of H&M would have been upheld.

So if there is a word mark and a logo with distinctive graphic elements, then it is recommended  to register both as a trademark.

H&M against H&C

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Arnaud Bos

“Trademark protection gives freedom to do business.”



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