Finally another decision that simply assumes a likelihood of confusion. The EUIPO Board of Appeal grants the opposition by the earlier Swedish word mark ELON against the application for the EU word/figurative mark ELTON (pictured).

Visually and aurally, the two brands are highly similar. But how about the conceptual comparison? With ELON one thinks of Elon Musk, whilst ELTON reminds of Elton John. The visual and aural similarity between the marks can be removed (neutralised) if at least one of them has a clear, specific and immediately comprehensible meaning to the public (CJAE in a.o. Asterix v Mobilix). In the overall comparison, the two marks may then be considered (totally) non-similar. Then, in any case, there is no infringement. Lionel Messi benefited from this possibility when he was rather late with arranging trademark protection for MESSI. The prior trademark MASSI opposed in vain, although MESSI is, of course, visually and aurally highly similar to MASSI. But unlike with MASSI, everyone thinks of the football player when perceiving MESSI, so no similarity was assumed. Actually quite strange, this neutralization doctrine.

Now back to Elon and Elton and the Board of Appeal. Those two names do not evoke a crystal clear connection with Elon Musk and Elton John among the entire public. There is also a non-negligible part of the public for whom that connection is not evoked. And then, therefore, neutralisation cannot be appliet for that part of the public. Neutralisation is really only meant for concepts or names that evoke a  crystal clear meaning with everyone.

Maarten Haak