CFI confirms "threshold" test to similarity of goods in Easyhotel case

In T-316/07 Commercy AG v OHIM (ex parte easyGroup), the CFI rejected an appeal from OHIM refusing to cancel a registered trade mark for easyHotel for reservation services. The earlier mark was identical but for computer software for producing Internet-enabled hotel reservation platforms. The CFI held that the services were not similar because, in effect, they operated in different markets, one being "upstream" of the other. As it said, people using a reservation website are not interested at all in who provides the software for running that platform.

The decision is interesting because it confirms that the determination of the issue of similarity of goods and services has to be carried out wholly independent of the identicality or similarity of the marks. Thus, the appellant submitted that because the marks were identical, the goods or services had to be very different. The CFI rejected that approach and said that the determination of similarity of goods and services did not depend on the similarity of the marks. The two were independent.

It is clear from this decision that even if a global appreciation of all matters would indicate was a likelihood of confusion, such does not matter if the "threshold" test of similarity of goods is not satisfied. For further discussion, see para 3-122 in book.