Reputation and distinctiveness of opponent's mark not relevant to assessment of similarity

The ECJ has annulled the General Court's decision that an opposition to the registration of a figurative mark, based on an earlier EU trade mark, was well founded.

When identifying the dominant element of the earlier mark, EUIPO and the General Court had taken into account the reputation and degree of distinctive characters of that mark.

The ECJ said this test was relevant when assessing the likelihood of confusion but it was not relevant to the step that must first be taken of comparing marks to determine their similarity.

The ECJ went on to rule that the EUIPO had not properly identified the services in respect of which it had to examine the distinctive character of the earlier mark.

China Construction Bank Corporation v EUIPO (Case C-115/P) EU:C:2020:469 (11 June 2020)