The European Union trade mark No 18736246 named Sportbet was applied for in class 41 regarding gambling services. In response, Circus Belgium S.A., owners of the trade mark Betsport, filed an opposition to the registration under Article 8(1)(b) of the EUTMR. However, the opposition was rejected in its entirety as no relevant similarity was found between the two signs despite the fact that the services offered were identical.

The opponent appealed against that decision made by the Opposition Division, arguing that the two trademarks consisted of the same words, and despite they were both represented in different colours, and in a different order, it wasn’t enough for consumers to easily distinguish  between them, since visually and aurally they are extremely similar. In response, the applicant stated that the similarity between two marks must be assessed in its entirety and not only in specific aspects.

The Board examined the case in accordance with the article 8(1)(b) EUTMR whereby a trade mark cannot be registered because of its identity or similarity to an earlier trade mark or if because of the identity or similarity of the goods or services there exists a likelihood of confusion on part of the public in the territory where the earlier trade mark is protected.

After a thorough review, the Board found that the services offered by the two marks were identical. However, given the purely descriptive nature of the words ‘Sport’ and ‘bet’, the combination of which alludes to a sports betting service, it has to be considered that the figurative elements of the signs are more relevant in order to assess a distinction between the signs, rather than the denominative elements.

For this reason, after examining the signs visually and aurally, the Board concluded that there were no relevant similarities between the trade marks. Visually, the words in the signs were in a different position and in a different stylisation, which is a noticeable difference for consumers. Moreover, the overlapped words are a distinctive element between both signs  because they entail a different beginning and end for those trade marks. Aurally, this overlapping of words was also taken into account, alluding that the pronunciation of the trade marks will be different in any case. Conceptually, no notable distinctions were perceived because both marks share commonly descriptive terms without any notable distinctiveness.

In the light of the foregoing and the fact that the earlier mark is not significantly distinctive, the Board rejects the appeal in its entirety on the grounds that there is no likelihood of confusion and therefore no perceived infringement of the Article 8(1)(b) of the EUTMR. Circus Belgium

S.A. is ordered to pay the costs of the appeal proceedings.

Decision of the Second Board of Appeal of 28 October 2024, in case R 1199/2024-2.