When a trademark application is filed, EUIPO and other offices assess whether the applied-for mark conflicts with earlier registered trademarks. This assessment (the likelihood of confusion analysis) considers two distinct dimensions: the similarity of the marks themselves, and the similarity of the goods or services they cover. A mark may be refused registration on relative grounds if it is confusingly similar to an earlier mark used for similar or identical goods or services.
Similarity analysis is not a binary determination. It is a structured legal assessment that weights multiple factors and reaches a global conclusion. Understanding how EUIPO and national offices approach similarity is essential both for drafting marks that can withstand examination, and for assessing the strength of a potential opposition or infringement claim based on an existing mark.
EUIPO assesses trademark similarity across three dimensions: visual similarity, phonetic similarity, and conceptual similarity. These assessments are conducted separately and then weighed together in reaching an overall similarity conclusion.
Visual similarity concerns the overall visual impression of the marks. For word marks, this involves comparison of the component words: their length, letter composition, and structure. For figurative marks, the shape, colour, and design elements are assessed. For composite marks combining text and images, the assessment considers which elements are dominant and distinctive, and which are weak or generic. Marks that differ visually in their most prominent elements are typically found visually dissimilar, even if they share some component words or design features.
Phonetic similarity concerns how the marks sound when spoken aloud. This is assessed from the perspective of the relevant public in the territories where the marks are used. Two marks may look different but sound nearly identical; two marks may share a similar spelling but be pronounced very differently. For marks in different languages or scripts, phonetic similarity requires assessment of how the relevant consumers would pronounce each mark.
Conceptual similarity concerns the meaning the marks convey. Two marks that are visually and phonetically different may still be conceptually similar if they evoke the same idea, object, or concept. Conversely, two marks that share a common word may be conceptually different if that word has distinct meanings in the context of the respective goods and services. A strong conceptual difference can offset visual or phonetic similarity in the overall assessment.
EUIPO's likelihood of confusion assessment operates on the principle of global appreciation: the overall impression created by each mark is assessed from the perspective of the average consumer of the relevant goods or services, who is reasonably well-informed and reasonably observant, but who does not typically engage in detailed analysis and whose perception of a mark is usually imperfect. The global assessment also considers the interdependence of the similarity dimensions: a high degree of mark similarity may lead to a finding of likelihood of confusion even for goods that are not closely similar, and vice versa.
The average consumer is a legal construct representing the typical member of the relevant public for the goods or services in question. Their level of attentiveness varies by product type: the average consumer of everyday consumer goods has a lower level of attention than the average consumer of specialised technical equipment or luxury items. In EUIPO proceedings, the relevant public is assessed for each pair of goods or services under comparison, and the average consumer standard is applied to the territory or territories in which the earlier mark has protection.
There is no bright-line threshold. The likelihood of confusion assessment is an overall assessment that weighs the degree of mark similarity, the degree of goods/services similarity, and the distinctive character of the earlier mark. A highly distinctive earlier mark (through inherent distinctiveness or acquired reputation through use) will be given a wider scope of protection: even a moderate degree of similarity may create likelihood of confusion. A weak earlier mark (one with low inherent distinctiveness) is given a narrower scope: only a high degree of similarity will create confusion risk.
No. A word trademark registration provides protection against use of identical or confusingly similar signs in connection with identical or similar goods and services. It does not prevent all uses of the word in commerce. A third party may use the registered word descriptively, geographically, or as their own name, subject to the conditions set out in Article 14 of the EU Trademark Regulation. Whether a particular use constitutes infringement depends on an analysis of similarity and whether the use is likely to affect the essential function of the mark.
The strength (or distinctive character) of the earlier mark is a key variable in the global assessment. Marks with a high inherent distinctive character (invented words, arbitrary combinations with no connection to the goods or services) are given a wider scope of protection than marks that are descriptive or weakly distinctive. Acquired distinctiveness through use (enhanced through marketing, sales, and reputation) can also increase the scope of protection of an otherwise weak mark. Assessing the distinctive character of your own earlier mark and the applicant's applied-for mark is an essential part of evaluating whether to file an opposition.
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