Trade marks "RABE" and "RACE" not confusable despite identical vowel sequence

The Federal Patent Court (BPatG) decided by order of 29.01.2013 that the trade marks "RABE" and "RACE" are not confusable despite an identical vowel sequence and therefore coexistence is possible. In the court's view, rounded letters are only similar if the number, placement and orientation of the roundings correspond to a large extent.

The proceedings before the BPatG (Order of 29.01.2013, 27 W (pat) 527/12) are based on an opposition against the registration of the word/figurative mark "RACE" for goods in classes 25 and 28, namely clothing, footwear, headwear and gymnastics and sports articles. The opposition mark "RABE" is registered in class 25 for upper clothing. In the view of the trade mark proprietor, there is a likelihood of confusion between the marks because they are very similar at least in terms of their written appearance and the only difference, which is negligible, exists in the letters "B" and "C", which are themselves also very similar, in the third position respectively, with otherwise identical vowel sequence. The German Patent and Trade Mark Office followed this view and deleted the mark "RACE" on the basis of the opposition.

The court's decision

The BPatG ultimately revoked the deletion order of the DPMA because there was neither a visual nor a phonetic likelihood of confusion. The required distance from the opposition mark was maintained. According to the court's reasoning, the marks are not visually similar because the letters B and C differ significantly in the number of roundings, their placement and orientation, which is decisive. Otherwise, B, C, D, G, J, O, P, Q, R, S and U would always have to be regarded as similar.

There is also no phonetic likelihood of confusion because the corresponding vowel sequences *A*E recede into the background compared to the striking difference between B and C. The identical vowel sequence was overweighted by the trade mark office because it is established from a linguistic perspective that word sequences remain readable (better) when the vowels are omitted, but only the vowels alone do not. This was illustrated by the following example:

ie eou e-oaoe i eae.
D Btnng dr Vklflg ist vrltt.

Furthermore, the different semantic content (RABE = bird / RACE = race) speaks against the assumption of a likelihood of confusion.

The example sentence is incidentally "Die Betonung der Vokalfolge ist veraltet".

Conclusion

The decision shows that it is not always and not only the vowel sequence that matters, especially when the trade marks to be compared are lexically verifiable and their semantic content is fundamentally different. Even individual letters can then make the small but significant difference.