Omega SA v. Dream Property GmbH

In its observation, the applicant did not include an unambiguous request for a proof of use of the earlier mark. The applicant thought that the documents filed by the opponent were filed to prove the use of the mark and commented them as such. In fact, the documents were submitted to substantiate the claimed reputation of the mark. The applicant submitted only its comments and opinions about the evidence. The decision on the relevance or conclusiveness of the evidence rests on the Office. If the applicant was of the view that the opponent did not demonstrate the requisite use on his own, then he should have formulated an express request, instead of simply making his own judgment on the contents of the opponents submissions. At no point did the applicant request the opponent to provide proof of use of its earlier mark. The signs are similar to the extent that they share the term 'OMEGA'. As the marks coincide in their beginnings, to which the public normally tends to pay more attention, the visual similarity of the signs is above average. Phonetically, the intonation and rhythm changes only in the ending due to the additional word in the contested mark. Here also, the similarity between the signs is above average, due to the identity of the first three syllables in a four-syllable word. The signs are also conceptually similar to the extent that they both convey a reference to a letter from the Greek alphabet. The common word Omega has no descriptive or non-distinctive connotations and has a distinctive role on its own within the contested sign. In the presence of identical and similar goods to a degree above average and significant similarity of the signs the Board confirms the contested decision in its finding of a likelihood of confusion. The appeal is dismissed.