David de Gea Successfully Defends DDG Trademark at General Court of the EU

In September 2021, David de Gea applied with the EUIPO to register a figurative EU trademark consisting of the letters ‘D’, ‘D’, and ‘G’ (the DDG Mark). The mark was to cover goods including ‘Games and playthings; Video game apparatus; Gymnastic and sporting articles; Decorations for Christmas trees’.

In October 2021, Schmidt Spiele a German games manufacturer, filed a notice of opposition citing its own earlier registered EU trademark containing the sequence ‘D’, ‘O’, and ‘G’ (the DOG Mark).

The DOG Mark covered goods including those described as ‘Games (including electronic and video games), other than those adapted for use with an external display screen or monitor; playing cards; board games; party games; all the above except toys for animals’.

In April 2023, the EUIPO’s Opposition Division rejected the opposition.

Schmidt Spiele appealed this decision, but the Board of Appeal subsequently dismissed the appeal on the basis that there was no likelihood of confusion between the marks.

Schmidt Spiele then brought the matter before the GCEU, seeking annulment of the prior decisions and requesting that the EUIPO be ordered to pay the costs.

Relevant public

In the global assessment of the likelihood of confusion, there ought to be consideration as to the average consumer of the category of goods, as well as the notion that the average consumer’s level of attention is likely to vary according to the category of goods or services.

Schmidt Spiele argued the Board of Appeal ought to have deemed there to be a lower level of attention as games and toys, including board games, are inexpensive and purchased daily.

However, the GCEU upheld the Board’s finding that the level of attention would be average, given the nature of the goods.

Comparison of the Signs

Schmidt Spiele tried to argue that a consumer would view David de Gea’s sign as it is, without analysing the graphic representation of each letter of the sign in detail, and that the Board of Appeal erred in finding that it was unlikely the second letter would be perceived as the letter ‘o’ instead of the letter ‘d’.

However, the GCEU found that the Board were correct in their view that the presence of the letter ‘g’ would mean that it is likely the first two characters would be perceived as the letter ‘d’.

Ultimately, the Board was deemed correct in finding that the vast majority of the relevant public would perceive the sequence of letters ‘d’, ‘d’ and ‘g’.

Distinctiveness

Further, the assessment of the likelihood of confusion must consider the distinct and dominant elements of the signs as the perception of a mark by an average consumer plays a crucial role in determining likelihood of confusion.

The Court reiterated the importance of assessing the distinctiveness and dominance of elements within each mark. The DDG Mark was considered distinctive as it had no inherent meaning for the public.

By contrast, the DOG Mark was found to have a recognisable and meaningful word element, which could reduce the visual and phonetic similarities between the two signs. The word ‘dog’ was deemed distinctive and dominant in the earlier mark.

Visual

Visually, the marks were found to have only a low degree of similarity due to the difference in the central letter (‘D’ in DDG vs ‘O’ in DOG).

Phonetically, the Board determined that both marks would likely be pronounced as individual letters rather than as words, leading to low phonetic similarity. Conceptually, the DDG Mark held no meaning, whereas the DOG Mark evoked the clear and familiar concept of a dog, making a conceptual comparison impossible.