Lidl Stiftung & Co. KG v. LÍDL MUSIC, spol. s r. o.

The opponent has submitted pictures of musical instruments showing how the mark is used as well as invoices showing sales of these products. The Board notes that the trade mark appears displayed clearly and legibly on the flute and the mouth organ. Consumers who wish to buy these instruments will therefore notice the brand name on them. Therefore, the sign is used in a manner which is consistent with its distinctive function, i.e. to inform consumers on the industrial and/or trade origin of the products. The requirement as regards nature of use is thus satisfied. As regards the invoices, the BoA notes that translations are optional and hat the information relevant for the purposes of these proceedings can be extracted easily from the invoices. The dates have the universally accepted format ‘dd.mm.yyyy and this makes it easy to see that a great number of the invoices fall within the relevant five-year period. The information about prices and quantities can also be easily found on the invoices: figures listed beside the Czech Crowns can only be sums of money. The invoices also have a column for the unit price and another for the units sold. This is a standard way of displaying information on invoices. Globally considered, the invoices and the pictures confirm that the mark has been used genuinely in respect of musical instruments in the relevant territory. There is a similarity between the marks because the dominant element, in both of them, is the word ‘LIDL and that word is inherently distinctive in the field of music. The word that accompanies ‘LIDL is ‘MUSIC in the earlier mark. This word is so banal that it will be understood by most average consumers as a reference to the purpose of the products. The applicant's claim taht 'EXPRESS' is distinctive is unconvincing, as it is so banal that it cannot perform any distinctive function. Visually, the differences in the manner in which the conflicting marks are represented do exist, as noted by the applicant, but they do not outweigh the striking identity of the word element ‘LIDL. Aurally, the marks are similar, too, because their distinctive element - which consumers are likelier to keep in their memory - is the same. Since the goods are identical and the marks are similar, a finding of likelihood of confusion is justified. The appeal is dismissed.