Sense

Our client and our trademark attorney acting for this client, Friso Onderdelinden, believed these trademarks were not similar. The owner of the trademark SENSE IT conducted opposition proceedings against the combined word device mark SENSE that belonged to our client Batavia Stad Outlet Shopping B.V. This case came up in the Benelux and in such opposition procedures it is up to the Benelux Bureau for Intellectual Property to decide whether a risk of confusion exists. Key role in this judgement has been the distinctiveness of SENSE as a trademark.

Both trademarks are intended for goods and/or services that involve aromas and perfumes.

The trademark SENSE has been filed for registration in Benelux as a combined word/device mark, showing the text “perfumes and cosmetics” in small letters.

On challenging the opposition obviously we emphasised the differences between the trademarks, the most important ones being the following:

- Word trademark versus combined word/device trademark

- The word IT

The Benelux Bureau agreed that SENSE IT is hardly distinctive when it comes to products and services that involve aromas and perfumes. The trademark can be considered a “(sensory) perception”.

In previous jurisdiction it has already been determined quite often that a risk of confusion of trademarks increases as the distinctiveness of the older trademarks becomes stronger. In this case the decision is the following: SENSE IT is hardly distinctive. The same applies to the word SENSE, a dominant part of the combined trademark.

Judgement

During comparison hardly any attention needs to be paid to the word SENSE which both trademarks have in common. This makes the differences between the trademarks highly important. According to the Benelux Bureau the overall impressions of the trademarks do not correspond which means the risk of confusion is non-existent.

Our client’s word/device mark SENSE was thus included in the register.

Givaudan  / Batavia Stad Outlet Shopping B.V.

Benelux Bureau for Intellectual Property

23 February 2010 -  nr. 2002564