Sphaira Innovation AG

The decision concerned an application by Sphaira Innovation AG for a trade mark. The examiner had raised objections to the application based on the existence of earlier, cited trade marks, arguing that the applicant's mark was deceptively similar to these earlier marks. The applicant contended that the marks were not deceptively similar.

The court was required to determine whether the applicant's trade mark was deceptively similar to the cited trade marks, within the meaning of section 44 of the relevant Act. This involved assessing the likelihood of confusion among ordinary consumers, considering the overall impression of the marks, their appearance, sound, and the ideas they conveyed, as well as all surrounding circumstances.

The court applied the established test for deceptive similarity, which requires a comparison of the impression persons of ordinary intelligence and memory would have recalling the cited trade mark against the impression they would get from the applicant's trade mark. The court noted that the test is not about mere possibility of confusion but a real, tangible danger that consumers will wonder if the products originate from the same source. Despite the applicant's submissions and acknowledging differences between the marks, the court found that the prominent and memorable element, "PLANET," was dominant in both the applicant's mark and the cited marks, leading to a conclusion of deceptive similarity. The court indicated it would further elaborate on the specific goods and services involved.