Protecting an idea as a trade mark

The Court of First Instance of the European Communities (CFI) yesterday dismissed the appeal of fashionable furniture-makers IKEA in Case T‑112/06, Inter-Ikea Systems BV v Office for Harmonisation in the Internal Market, Walter Waibel. Herr Waibel obtained registration of the "idea" figurative mark, depicted on the right, as a Community trade mark for furniture and related services in Classes 16, 20 and 42. IKEA applied for annulment, citing its earlier Community and national trade marks for the IKEA figurative mark, depicted below on the left.

The Cancellation Division invalidated the mark, considering it confusingly similar to IKEA's in relation to the same and similar goods and services but without taking any position on IKEA's argument that it was also entitled to well-known mark protection under Article 8(5) of Council Regulation 40/94. The Board of Appeal reversed this decision, holding that the contested mark and IKEA's earlier registrations were visually and conceptually dissimilar – in other words, by reference to two out of three possible bases for comparison – and that outweighed their aural similarity. Since furniture is rarely ordered orally, the aural similarity was not decisive. In addition, consumers tend to be observant, owing to the relatively high price of furniture and because of aesthetic considerations. They would therefore pay proper attention to the respective trade marks.

IKEA's appeal to the CFI was dismissed. In the CFI's opinion there was no likelihood of confusion between the IKEA mark and Herr Waibel's even when the respective goods and services were identical. According to the CFI, the marks at issue were visually and conceptually dissimilar, with only a low degree of aural similarity. That court reiterated that, while a lower degree of similarity between the respective marks may be counterbalanced by a higher degree of similarity or identity of goods and services, an absence of similarity cannot be counterbalanced.

A scholar writes: "the word "IKEA" is an acronym comprising the initials of the name of the company's founder (Ingvar Kamprad), the farm where he grew up (Elmtaryd) and his home village (Agunnaryd)".

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