Similarity of trademarks is a very important condition for a risk of confusion. Similarity of the products and/or services is another. These are independent conditions, if no similarity of products is present, no confusion can arise. The same applies with similar marks which are not similar but cover identical products.
Case law assumes a further independency: similarity of marks and products can compensate each other. If the trademarks look very similar, confusion can arise even in the event the products are similar to a low degree. And vice versa: if the products are identical, confusion can happen even though the trademarks are similar to a moderate degree.
Recently we saw an opposition which is a good example of this. The trademark was ICEBERG, registered for vodka in the name of Nordbrand Nordhausen. The opposition was directed against an identical trademark which covered water, non-alcoholic beverages and fruit drinks. No competing products, but complementary and according to the EUIPO similar to a low degree. As the trademarks were identical, the low degree of similarity between the products was just sufficient to accept the opposition.
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“Trademark protection gives freedom to do business.”