EU trade mark dispute: Cardioflow v. CARDIOFORM

On 6 November, the General Court of the European Union ruled in case T-1146/23 on a dispute between the EU trade mark Cardioflow (N. 018115661) and the earlier word mark CARDIOFORM (N. 013592035).

In 2019, the German company Angiokard med. Spritzguß GmbH applied to the European Union Intellectual Property Office (EUIPO) for the registration of the word Cardioflow as an EU word mark, covering goods and services in Classes 10, 35 and 42 of the Nice Classification, such as disposable, sterile medical devices for angiography, cardiology and surgery, and the sale and development thereof. However, a US company, W.L. Gore & Associates Inc., opposed the registration for those goods in Class 10 on the basis of the earlier word mark CARDIOFORM, which covers implant materials (prostheses) for use in surgery in Class 10.

The Opposition Division partially upheld the opposition, holding that there was a likelihood of confusion in respect of 'disposable, sterile medical devices for dental and urological applications' in Class 10. However, it rejected the opposition in respect of the other goods covered by the trade mark application. The US company appealed against the decision in respect of goods for angiography, cardiology, anaesthesia, surgery and infusion. However, the Board of Appeal dismissed the appeal on the basis that the goods were only minimally similar and that the signs in question had a low degree of visual, phonetic and conceptual similarity. 

The US company appealed the decision to the General Court of the European Union, which had to decide whether there was a likelihood of confusion between the marks at issue.

The Court upheld the Board of Appeal's decision. First, it highlighted the importance of breaking down trade marks into their component parts in order to assess their similarity. In this case, the marks 'Cardioflow' and 'CARDIOFORM' are divided into two parts: the common element 'cardio' and the additional elements 'flow' and 'form'. Although both marks share the word 'cardio', which refers to heart health, the Court argued that this element is considered descriptive in the context of medical products, which means that it has a low degree of distinctiveness. Therefore, the element 'cardio' cannot be the sole determining factor in the assessment of the similarity between the marks. Instead, the relevant public, composed of medical professionals, is capable of recognising and distinguishing the meanings of the additional elements. In this case, 'flow' suggests a focus on blood flow, while 'form' refers to the shape of organs or medical devices. Those differences in the additional elements are crucial because they convey different meanings that the public may associate with each mark.

In addition, the Court pointed out that, although the element 'cardio' is common to both marks, its descriptive nature reduces its weight in the visual and phonetic comparison. This means that, although the marks have a similar beginning, the differences in the elements "flow" and "form" are significant enough for the public not to confuse the two marks. Thus, the Court concluded that, in the public's perception, the marks not only look and sound different, but also evoke different concepts, which reinforces the idea that there is no likelihood of confusion between them.