“(11) The protection afforded by the registered trade mark, the function of which is in particular to guarantee the trade mark as an indication of origin, should be absolute in the case of identity between the mark and the sign and the goods or services. The protection should apply also in the case of similarity between the mark and the sign and the goods or services. It is indispensable to give an interpretation of the concept of similarity in relation to the likelihood of confusion. The likelihood of confusion, the appreciation of which depends on numerous elements and, in particular, on the recognition of the trade mark on the market, the association which can be made with the used or registered sign, the degree of similarity between the trade mark and the sign and between the goods or services identified, should constitute the specific condition for such protection. The ways in which likelihood of confusion may be established, and in particular the onus of proof, should be a matter for national procedural rules which should not be prejudiced by this Directive.”
“Article 2 Signs of which a trade mark may consist A trade mark may consist of any signs capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings. Article 3 Grounds for refusal or invalidity 1. The following shall not be registered or, if registered, shall be liable to be declared invalid: (a) signs which cannot constitute a trade mark; (b) trade marks which are devoid of any distinctive character; (c) trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or the time of production of the goods or of rendering of the service, or other characteristics of the goods or services;… 2. Any Member State may provide that a trade mark shall not be registered or, if registered, shall be liable to be declared invalid where and to the extent that: … (d) the application for registration of the trade mark was made in bad faith by the applicant. Article 4 Further grounds for refusal or invalidity concerning conflicts with earlier rights 1. A trade mark shall not be registered or, if registered, shall be liable to be declared invalid: (a) if it is identical with an earlier trade mark, and the goods or services for which the trade mark is applied for or is registered are identical with the goods or services for which the earlier trade mark is protected; (b) if because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public; the likelihood of confusion includes the likelihood of association with the earlier trade mark. … Article 5 Rights conferred by a trade mark 1. The registered trade mark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade: (a) any sign which is identical with the trade mark in relation to goods or services which are identical with those for which the trade mark is registered; (b) any sign where, because of its identity with, or similarity to, the trade mark and the identity or similarity of the goods or services covered by the trade mark and the sign, there exists a likelihood of confusion on the part of the public; the likelihood of confusion includes the likelihood of association between the sign and the trade mark. … Article 13 Grounds for refusal or revocation or invalidity relating to only some of the goods or services Where grounds for refusal of registration or for revocation or invalidity of a trade mark exist in respect of only some of the goods or services for which that trade mark has been applied for or registered, refusal of registration or revocation or invalidity shall cover those goods or services only.”
“1Trade marks. (1) In this Act a “trade mark” means any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings. A trade mark may, in particular, consist of words (including personal names), designs, letters, numerals or the shape of goods or their packaging. … Grounds for refusal of registration 3 Absolute grounds for refusal of registration (1) The following shall not be registered— (a) signs which do not satisfy the requirements of section 1(1), (b) trade marks which are devoid of any distinctive character, (c) trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of services, or other characteristics of goods or services, … (6) A trade mark shall not be registered if or to the extent that the application is made in bad faith. 5 Relative grounds for refusal of registration. … (2) A trade mark shall not be registered if because— (a) it is identical with an earlier trade mark and is to be registered for goods or services similar to those for which the earlier trade mark is protected, or (b) it is similar to an earlier trade mark and is to be registered for goods or services identical with or similar to those for which the earlier trade mark is protected, there exists a likelihood of confusion of the part of the public, which includes the likelihood of association with the earlier trade mark. … 10 Infringement of registered trade mark. … (2) A person infringes a registered trade mark if he uses in the course of trade a sign where because— (a) the sign is identical with the trade mark and is used in relation to goods or services similar to those for which the trade mark is registered, or (b) the sign is similar to the trade mark and is used in relation to goods or services identical with or similar to those for which the trade mark is registered, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the trade mark. … 47 Grounds for invalidity of registration. (1) The registration of a trade mark may be declared invalid on the ground that the trade mark was registered in breach of section 3 or any of the provisions referred to in that section (absolute grounds for refusal of registration). Where the trade mark was registered in breach of subsection (1)(b), (c) or (d) of that section, it shall not be declared invalid if, in consequence of the use which has been made of it, it has after registration acquired a distinctive character in relation to the goods or services for which it is registered. … (5) Where the grounds of invalidity exist in respect of only some of the goods or services for which the trade mark is registered, the trade mark shall be declared invalid as regards those goods or services only. … 72. Registration to be prima facie evidence of validity. In all legal proceedings relating to a registered trade mark (including proceedings for rectification of the register) the registration of a person as proprietor of a trade mark shall be prima facie evidence of the validity of the original registration and of any subsequent assignment or other transmission of it.”
“Class 09: Data recordings including audio, video, still and moving images and text in compressed and uncompressed form; computer software, including video, still and moving images and data in compressed and uncompressed form; downloadable electronic publications; computer, electronic and video games programmes and equipment; mouse mats; electronic instructional and teaching apparatus and instruments; apparatus for telecommunications, data communications, satellite broadcasting and transmission, television and radio broadcasting, transmission and reception, electronic messaging, access to interactive services and access to the internet; mobile telephone fascias and covers; and parts for all the aforesaid goods. Class 38: Broadcasting; communications; transmission, broadcast and reception and other dissemination of audio, video, still and moving images, text and data whether in compressed or uncompressed form and whether in real or delayed time; electronic mail services; television screen based information broadcasting and retrieval services; interactive broadcasting services; news information and news agency services; rental of radio and television broadcasting equipment; simultaneous broadcasting, transmission and delivery via the internet, television and radio of audio, video, still and moving images and data whether in compressed or uncompressed form, whether downloadable or non downloadable and whether in real or delayed time; provision of discussion forums; provision of information and advisory services relating to any of the aforesaid services. Class 42: Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software; design and development of systems for the processing, storage, security, delivery and transmission of data, and research relating thereto; design and development of systems to enable simultaneous broadcasting, transmission and delivery via the internet, television and radio of audio, video, still and moving images and data whether in compressed or uncompressed form, whether downloadable or non downloadable and whether in real or delayed time, and research relating thereto; computer programming; computer consultancy services, installation, maintenance, repair and upgrading of computer software; graphic design services; design, drawing and commissioned writing for the compilation of websites; creating and maintaining websites; hosting the websites of others; provision of information and advisory services relating to any of the aforesaid services.”
“9. In comparing the respective specifications, all relevant factors should be considered, as per Canon Kabushiki Kaisha v Metro-Goldwyn-Mayer Inc. [[1999] RPC 117 ] where the CJEU stated at paragraph 23 of its judgment: "In assessing the similarity of the goods or services concerned, as the French and United Kingdom Governments and the Commission have pointed out, all the relevant factors relating to those goods or services themselves should be taken into account. Those factors include, inter alia, their nature, their intended purpose and their method of use and whether they are in competition with each other or are complementary." 'Complementary' was defined by the General Court ("GC") in Boston Scientific Ltd v Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM)Case T-325/06 : "82 It is true that goods are complementary if there is a close connection between them, in the sense that one is indispensable or important for the use of the other in such a way that customers may think that the responsibility for those goods lies with the same undertaking…". 10. Additionally, the criteria identified in British Sugar Plc v James Robertson & Sons Limited ("Treat") [1996] R.P.C. 281 for assessing similarity between goods and services also include an assessment of the channels of trade of the respective goods or services. 11. If goods or services fall within the ambit of terms within the competing specification, they are considered to be identical, as stated by the General Court ("GC") in Gérard Meric v OHIM,case T-133/05 . 12. A great deal of the submissions made at the hearing, in writing and via evidence, focussed on the meanings of terms in the specifications. The significance of classification and the relevance of class numbers were considered by …the courts in Altecnic Ltd's Trade Mark Application (CAREMIX)[2002] RPC 639 . In Avnet Incorporated v Isoact Limited[1998] FSR 16 Jacob J held that: "In my view, specifications for services should be scrutinised carefully and they should not be given a wide construction covering a vast range of activities. They should be confined to the substance, as it were, the core of the possible meanings attributable to the rather general phrase." Jacob J also said, in Treat: "When it comes to construing a word used in a trade mark specification, one is concerned with how the product is, as a practical matter, regarded for the purposes of trade. After all a trade mark specification is concerned with use in trade". 13. Specifications should not be given an unnaturally narrow meaning, as per Beautimatic International Ltd v Mitchell International Pharmaceuticals Ltd and Another[2000] FSR 267 . In Thomson Holidays Ltd v Norwegian Cruise Lines Ltd[2003] RPC 32 , although in the context of a non-use issue, the court considered interpretation of specifications: "In my view that task should be carried out so as to limit the specification so that it reflects the circumstances of the particular trade and the way that the public would perceive the use. The court, when deciding whether there is confusion under section 10(2), adopts the attitude of the average reasonably informed consumer of the products. If the test of infringement is to be applied by the court having adopted the attitude of such a person, then I believe it appropriate that the court should do the same when deciding what is the fair way to describe the use that a proprietor has made of his mark. Thus, the court should inform itself of the nature of trade and then decide how the notional consumer would describe such use".” "In assessing the similarity of the goods or services concerned, as the French and United Kingdom Governments and the Commission have pointed out, all the relevant factors relating to those goods or services themselves should be taken into account. Those factors include, inter alia, their nature, their intended purpose and their method of use and whether they are in competition with each other or are complementary." "82 It is true that goods are complementary if there is a close connection between them, in the sense that one is indispensable or important for the use of the other in such a way that customers may think that the responsibility for those goods lies with the same undertaking…". "In my view, specifications for services should be scrutinised carefully and they should not be given a wide construction covering a vast range of activities. They should be confined to the substance, as it were, the core of the possible meanings attributable to the rather general phrase." "When it comes to construing a word used in a trade mark specification, one is concerned with how the product is, as a practical matter, regarded for the purposes of trade. After all a trade mark specification is concerned with use in trade". "In my view that task should be carried out so as to limit the specification so that it reflects the circumstances of the particular trade and the way that the public would perceive the use. The court, when deciding whether there is confusion under section 10(2), adopts the attitude of the average reasonably informed consumer of the products. If the test of infringement is to be applied by the court having adopted the attitude of such a person, then I believe it appropriate that the court should do the same when deciding what is the fair way to describe the use that a proprietor has made of his mark. Thus, the court should inform itself of the nature of trade and then decide how the notional consumer would describe such use".”
“30. I repeat here that Ofcom’s definition of telecommunication is “[c]onveyance over distance of speech, music and other sounds, visual images or signals by electric, magnetic or electro-magnetic means”
“46. The average consumer is reasonably well informed and reasonably circumspect and observant, but his level of attention is likely to vary according to the category of goods or services. For both parties, the average consumer for some goods and services will be the general public (e.g. electronic and video games programmes and equipment, database programs and telecommunications). For other goods and services, it will be business professionals (e.g. provision of commercial business information by means of a computer database; computerised database management; compilation of information into a database) and, particularly in relation to the applicant, certain of its goods and services will be purchased by professionals, such as design and development of systems for the processing, storage, security, delivery and transmission of data, and research relating thereto; design and development of systems to enable simultaneous broadcasting, transmission and delivery via the internet, television and radio of audio/video data.”
“Distinctiveness of the earlier mark 50. It is necessary to consider the distinctive character of the opponent’s mark because the more distinctive it is, either by inherent nature or by use (nurture) the greater the likelihood of confusion [Sabel BV v Puma AG[1998] RPC 199 ]. The distinctive character of a trade mark must be assessed by reference to the goods or services in respect of which registration is sought and by reference to the way it is perceived by the relevant public [Rewe Zentral AG v OHIM (LITE) [2002] ETMR 91]. The opponent has not filed evidence of use of its mark, so there is no question of whether it is entitled to an enhanced degree of distinctive character gained through use. The assessment to be made is the degree of inherent distinctive character. YOUR VIEW is a view which belongs to the second person (singular or plural). I consider the mark to have an average level of distinctive character; it does not describe the opponent’s goods and services, but neither is it invented. Likelihood of confusion 51. In deciding whether there is likelihood of confusion between the marks, I must weigh the various factors I have identified. This includes keeping in mind the whole mark comparison and the principle of interdependency, whereby a lesser degree of similarity between the services may be offset by a greater degree of similarity between the trade marks, and vice versa (Canon Kabushiki Kaisha v Metro-Goldwyn-Mayer Inc.[[1999] RPC 117 ]). 52. Similarity between marks cannot, however, compensate for absence of similarity between goods, goods and services or between services. Consequently, where there is no similarity between the parties’ goods and services, there is no likelihood of confusion. Where the goods/services are similar only to a very low degree, these are goods and services to which the average consumer will pay a relatively close amount of attention. Even though there is, overall, a high degree of similarity between the marks and, even allowing for the fact that a visual perception plays the most important part in the purchasing process, the higher level of attention and the lower levels of similarity between the goods and services, coupled with the differences between the marks, will offset a likelihood of confusion. Consequently, in relation to the following goods and services, there is no likelihood of confusion and the opposition fails:… [the relevant goods and services were set out] 53. In relation to the other goods and services, all of which I have assessed at ranging between identical to a reasonable level of similarity, there is a likelihood of confusion. The visual perception of the marks during the purchasing process carries more weight than the aural perception. Although the degree of conceptual similarity is no more than average, there is a high degree of visual similarity. Lack of conceptual similarity can offset a high degree of visual and/or aural similarity [Ruiz-Picasso v OHIM, case 361/04 P [2006] E.T.M.R. 29], but this is not a rule of thumb [As per the GC in Nokia Oyj v OHIMCase T-460/07 : “Furthermore, it must be recalled that, in this case, although there is a real conceptual difference between the signs, it cannot be regarded as making it possible to neutralise the visual and aural similarities previously established (see, to that effectCase C-16/06 P Éditions Albert René [2008] ECR-I-0000, paragraph 98)”] and here there is at least an average degree of conceptual similarity between the marks. Even allowing for a high level of purchasing attention, I consider that there will be a likelihood of confusion between YOUR VIEW and YOUVIEW for those goods and service which are identical, highly similar or similar to a good degree. Consequently, the opposition succeeds in relation to:… [the relevant goods and services were set out]”
“26. I think that once one has, as one does, a situation in which the same piece of apparatus, be it a smart phone or a computer, which is capable of receiving both telephone calls and television programs, it becomes extremely difficult to maintain the distinction for which Mr Alexander [for YV] contends. Even supposing he is right and one should construe "telecommunication services" as excluding the reception of television programs, and as being limited to telephony and broadband, it remains the case that an apparatus for receiving one is an apparatus for receiving the other. That, as it seems to me, is enough to show that there is a very close similarity between telecommunication services and apparatus for television and radio reception. 27. Mr Malynicz [for Total] pointed to the Nice Classification, Ninth Edition. He did so not in order to construe what "telecommunications services" meant in his clients' specification, recognising that would be impermissible. Instead he drew attention to the explanatory note to show that as a matter of language, telecommunications could include both telephony, data message transmission and radio and television. To that extent, it merely confirms what one can find in a number of dictionaries. So, for example, the New Shorter Oxford Dictionary (1993) says that it means "Communication over a distance, esp. by cable, telegraph, telephone or broadcasting". 28. I have difficulty with the suggestion that telecommunications services should be given a narrow meaning which excludes broadcasting. Mr Malynicz did not seriously challenge the suggestion that in some contexts the term may have a more restricted meaning. The fact remains that, on its face, the expression includes a number of areas, increasingly converging, and that without a clear indication one way or the other, includes all of them.”
“19. So Mr Alexander says that the hearing officer construed the terms "databases" and "database programs" too widely. Not everything which has data is a database, and not everything which organises data is a database program. He took the example of a car which had the facility to store data about preferred seat positions for a variety of drivers. That did not make the car a database. He submitted that the core meaning of a database program was something like Oracle: a freestanding database program for producing freestanding databases. 20. Mr Malynicz submitted that it is notable that the proposed specification is not limited to software which performs the function of television or radio reception. The specification merely limits the specification of goods to software of the kind embedded (for embedding) in particular apparatus. Notional fair use of the appellants' mark with this specification would include selling database programs for embedding in apparatus for television and radio reception. That is not a fanciful suggestion, as a critical part of an electronic programming guide for a television is a database. This latter point was demonstrated by materials produced for the first time on this appeal, and to which Mr Alexander did not object. 21. I have no doubt that Mr Malynicz is right. I reject Mr Alexander's submission that one should construe database and database programs to "freestanding" ones. I see no reason to limit it in this way. If database software is being sold for inclusion in a more complex software arrangement, it does not lose its character as database software at the point of sale. Once one appreciates that the specification of the opposed mark includes within its scope the notional activity of selling or supplying software for organising the data held in the database of a television or radio receiver, I believe that the question answers itself. Mr Alexander's analogy with the car would only be relevant at all if the specification was limited so as to restrict it to goods where the database program was necessarily sold as a small part of a larger article. The specification in issue here does not have that effect.”
“The requirements of clarity and precision for identifying goods and services 38 As a preliminary point it must be observed that there is no provision of Directive 2008/95 which directly governs the question of the identification of the goods and services concerned. 39 However, that observation is not sufficient to support a finding that the determination of goods and services for the purposes of registration of a national trade mark is a matter which does not fall within the scope of Directive 2008/95. 40 Although it is apparent from recital 6 of the preamble to Directive 2008/95 that the Member States remain free to fix the provisions of procedure concerning, inter alia, the registration of trade marks (see, to that effect,Case C-418/02 Praktiker Bau- und Heimwerkermärkte[2005] ECR I-5873 , paragraph 30, andCase C-246/05 Häupl[2007] ECR I-4673 , paragraph 26), the fact remains that the Court has held that determination of the nature and content of the goods and services eligible for protection by a registered trade mark is subject, not to the provisions on registration procedures, but to the substantive conditions for acquiring the right conferred by the trade mark (Praktiker Bau- und Heimwerkermärkte, paragraph 31). 41 In that regard, recital 8 of the preamble to Directive 2008/95 emphasises that attainment of the objectives at which the approximation of the laws of the Member States is aiming requires that the conditions for obtaining and continuing to hold a registered trade mark be, in general, identical in all Member States (see, to that effect Siekmann [Case C-273/00 Sieckmann v Deutsches Patent und Markenamt[2002] ECR I-11737 ;[2003] Ch 487 ], paragraph 36;Case C-363/99 Koninklijke KPN Nederland[2004] ECR I-1619 , paragraph 122; andCase C-482/09 Budĕjovický Budvar[2011] ECR I-0000 , paragraph 31). 42 As regards the requirement of clarity and precision for the identification of the goods and services covered by an application to register a sign as a trade mark, it must be held that the application of certain provisions of Directive 2008/95 depends to a great extent on whether the goods or services covered by a registered trade mark are indicated with sufficient clarity and precision. 43 In particular, the question of whether or not any of the grounds for refusal or invalidity set out in Article 3 of the Directive apply to the mark must be assessed specifically by reference to the goods or services in respect of which registration is sought (see Koninklijke KPN Nederland, paragraph 33, andCase C-239/05 BVBA Management, Training en Consultancy[2007] ECR I-1455 , paragraph 31). 44 Similarly, further grounds for refusal or invalidity concerning conflicts with earlier rights provided for by Article 4(1) of the directive presuppose the identity or similarity of the goods or services designated by the two conflicting marks. 45 Moreover, the Court has held that, although it is not necessary to specify in detail the service(s) for which registration is sought, since, to identify those services, it is sufficient to use general wording, the applicant must conversely be required to specify the goods or types of goods to which those services relate by means, for example, of other more specific details. Such details will make it easier to apply the articles of Directive 2008/95 referred to in the previous paragraphs, without appreciably limiting the protection afforded to the trade mark (see, by analogy, Praktiker Bau- und Heimwerkermärkte, paragraphs 49 to 51). 46 In that connection, it must be recalled that the entry of the mark in a public register has the aim of making it accessible to the competent authorities and to the public, particularly to economic operators (Sieckmann, paragraph 49, andCase C-49/02 Heidelberger Bauchemie, ECR I-6129, paragraph 28). 47 On the one hand, the competent authorities must know with clarity and precision the nature of the signs of which a mark consists in order to be able to fulfil their obligations in relation to the prior examination of applications for registration and the publication and maintenance of an appropriate and precise register of trade marks (see, by analogy, Sieckmann, paragraph 50, and Heidelberger Bauchemie, paragraph 29). 48 On the other hand, economic operators must be able to acquaint themselves, with clarity and precision, with registrations or applications for registration made by their actual or potential competitors, and thus to obtain relevant information about the rights of third parties (Sieckmann, paragraph 51, and Heidelberger Bauchemie, paragraph 30). 49 Accordingly, Directive 2008/95 requires the goods and services for which the protection of the trade mark is sought to be identified by the applicant with sufficient clarity and precision to enable the competent authorities and economic operators, on that basis alone, to determine the extent of the protection sought.”
“57 As is apparent from the Court's case law (Arsenal Football Club [Case C-206/01 [2002] ECR I-10273 ]; Anheuser-Busch Inc v Buděejovický Budvar národní podnik (C-245/02) [2004] E.C.R. I-10989; Medion [Case C-120/04 [2005] ECR I-8551 ]; Adam Opel [Case C-48/05 [2007] ECR I-1017 ]; and Céline [Case C-17/06 [2007] ECR I-07041 ]), the proprietor of a registered mark may prevent the use of a sign by a third party which is identical with, or similar to, his mark under Art.5(1)(b) of Directive 89/104 only if the following four conditions are satisfied: • that use must be in the course of trade; • it must be without the consent of the proprietor of the mark; • it must be in respect of goods or services which are identical with, or similar to, those for which the mark is registered; and • it must affect or be liable to affect the essential function of the trade mark, which is to guarantee to consumers the origin of the goods or services, by reason of a likelihood of confusion on the part of the public. 58 As regards more particularly the fourth condition, first, as pointed out in [47] above, Art.5(1)(b) of Directive 89/104 is designed to apply only if, by reason of the identity or similarity both of the marks and of the goods or services which they designate, there exists a likelihood of confusion on the part of the public.”
“64 In that regard, contrary to the submission of O2 and O2 (UK), the referring court was right to limit its analysis to the context in which the sign similar to the bubbles trade marks was used by H3G, for the purpose of assessing the existence of a likelihood of confusion. 65 It is true that the notion of likelihood of confusion is the same in Arts 4(1)(b) and 5(1)(b) of Directive 89/104 (see, to that effect, Marca Mode CV v Adidas AG (C-425/98) [2000] E.C.R. I-4861 at [25]–[28]). 66 Article 4(1)(b) of Directive 89/104, however, concerns the application for registration of a mark. Once a mark has been registered its proprietor has the right to use it as he sees fit so that, for the purposes of assessing whether the application for registration falls within the ground for refusal laid down in that provision, it is necessary to ascertain whether there is a likelihood of confusion with the opponent's earlier mark in all the circumstances in which the mark applied for might be used if it were to be registered. 67 By contrast, in the case provided for in Art.5(1)(b) of Directive 89/104 , the third party user of a sign identical with, or similar to, a registered mark does not assert any trade mark rights over that sign but is using it on an ad hoc basis. In those circumstances, in order to assess whether the proprietor of the registered mark is entitled to oppose that specific use, the assessment must be limited to the circumstances characterising that use, without there being any need to investigate whether another use of the same sign in different circumstances would also be likely to give rise to a likelihood of confusion.”
“48. The authorities direct that, in making a comparison between the marks, I must have regard to each mark’s visual, aural and conceptual characteristics. I have to decide which, if any, of their components I consider to be distinctive and dominant, without engaging in an artificial dissection of the marks, because the average consumer normally perceives a mark as a whole and does not analyse its details. Both marks consist of two-word phrases (conjoined words, in the applicant’s case, about which I say more below) which it would be artificial to dissect: they ‘hang together’ as wholes. I consider the dominant and distinctive elements of the opponent’s mark to be YOUR VIEW, as a whole; similarly, in the application, the dominant and distinctive element is YOUVIEW. 49. Counsel argued at some length about their perceived similarities and dissimilarities. The perception of the average consumer will be of a your view trade mark and a you view trade mark. The meaning and the words is what is going to be remembered; a view by the person being addressed (you/your). The trade marks are clearly orally highly similar and conceptually similar. The stylisation of the application is noted but it does not change the sense and the perception of the trade mark. The absence of the letter r in the application can easily fall victim to the missing letter effect, which is pertinent to trade mark law in relation to imperfect recollection. The trade marks are highly similar.”