Can't stoppit, Toppits!

Reynolds applied to register as a trade mark the word TUB-ITS for “storage containers, not of common metal, for household and kitchen use” (Class 21). Cofresco opposed, citing its earlier Community trade mark registration of the TOPPITS logo for identical and similar goods. The main ground of opposition - one of many, it seems - was likelihood of confusion, by virtue of similarity of the marks and identity/similarity of goods.
The Irish Patents Office rejected the opposition: in the first place any likelihood of confusion was reduced by the fact that the average consumer was likely to pay at least as much attention to functional considerations as he would to brand names when purchasing plastic kitchen and household containers. As to the marks, Cofresco's was defined by its look and sound and its lack of meaning, while the dominant aspect of Reynolds' mark was its meaning (“put it in a tub”). In any event the distinctiveness of Cofresco's mark stemmed from bits of it that were different from those which rendered Reynolds' mark distinctive, so they consequently did not contribute to a likelihood of confusion. Cofresco appealed.
Mrs Justice Finlay-Geoghegan dismissed the appeal, but not before she rapped the hearing officer on the knuckles. She said (among other things):
* where goods are sold to the general public for domestic use, a judge can bring his or her own experience and common sense as a potential purchaser to bear in assessing the likelihood of deception and in determining the probable purchasing scenario of the goods in question in which the likelihood of deception must be determined.
* In this case no very careful or in-depth examination of the relevant trade marks would be made in the purchase of the goods concerned by consumers, who may not have both products before them at the time of making the purchase decision and with only an imperfect picture of the respective marks in his mind.* the hearing officer was wrong to discount the likelihood of confusion by reason of his view that the average consumer would be likely to pay at least as much attention to functional considerations as he would to brand names in choosing plastic kitchen and household storage containers.
* While there was some aural similarity, the two marks were insufficiently similar to induce confusion. A contrary finding by the Rechtbank’s-Gravenhage (District Court of the Hague, The Netherlands) last year in a similar dispute might be explained by linguistic differences between Dutch and Irish English-speakers as well as by the fact that evidence of the earlier mark’s large degree of distinctiveness that was accepted before the Dutch court was not put before the court in Ireland.

Right: plastic containers and their friends as art - a lovely conception by Jessica Stockholder
Kats' chorus: why in Irish oppositions do opponents still persist in raising every ground of opposition known to man, when they only seriously argue one or two of them? Surely this contributes to global warming and should be stopped now.
Toppits you can eat here; Toppits you can't eat here
Tub-its here
Tebbits here