Markhamis a brandoftonic. Although we do not know the brand itself, we do love tonic (preferably mixed with gin). The beautiful logo of Markham is an elephant,asshown left. Markham filed an opposition against the European application of an otherelephantlogo, alsofiled fortonicandalcoholic beverages. The OHIM had a look at both trademarks and found the marks conceptuallysimilar: bothshowan elephant.Butthere the similarityends.The depiction ofthe elephantsis completely different: theshape, positionand style differ.Alsoaurally the trademarks show no similarity (the application cannot be pronounced at all). This last point takes more weight for the OHIM as these products are normally order orally. Not surprisingly, the oppositionisrejected. So, an elephant in two trademarks is often not sufficient for constituting similarity. Further striking visual similarities must be present.
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