Lyst or Lust?
“LYST” means “desire” in Danish and is very similar to the German term “Lust”. The Federal Patent Court doubted that consumers would understand this conceptual content and found that the opposing trade mark had a normal distinctive character, in particular in relation to the services “provision of online advertising space for sellers and buyers for advertising” and “online advertising on the Internet and other worldwide computer networks” or “provision of information relating to the online purchase of fashion goods; marketing and trade in goods and for the conclusion of sales promotions”.
Green is ecological
The word “green” is understood both by the average consumer and by experts primarily in the sense of “ecological, environmentally conscious, environmentally friendly, environmentally compatible, sustainable” for a wide variety of products and services.
Lyst not directly similar to Greenlyst
Even if the specific spelling of the later trademark (capital letters at the beginning, followed by lower case letters) suggests a coherent word, it is not an overall conceptual unit. With the combination of the English “green” and the Danish “Lyst”, it cannot be assumed that consumers perceive an overall concept. The differences between the signs are perceived by consumers as phonetic, visual and conceptual comparison regards.
However, due to the identical adoption of the opposing trademark, consumers will assume that the opponent also deals with sustainable products in its services and will therefore associate the later trademark with the opponent.
To the point
There is not always a likelihood of confusion if a trademark is identically copied into another trademark. It depends on whether consumers assume the same origin of the relevant goods or services or assume an economic link between the suppliers. The Federal Patent Court affirmed this in this case because “Greenlyst” is perceived as a specification of the earlier trademark “LYST”.
