McDonald's International Property Co. Ltd v. Irfan Aydemir

The OD standard letter does not specify clearly and precisely the translation requirement. Notwithstanding this, the extract from the Demas database can be clearly understood in the language of the proceedings. The opponent has provided all the elements necessary in order to substantiate the opposition in the language of the proceedings. What is also relevant is that at no stage of the opposition proceedings and the applicant allege that it did not understand the opposition based on the earlier German mark. The contested decision is not based on reasons upon which the opponent had an opportunity to present its comments. Where the fame of the mark is a matter of common public knowledge, the opponent can entertain a reasonable expectation that such a fact will be accepted per se by the other party. The opponent quite reasonably did not submit the OD standard letter /(further facts, evidence, arguments) as a requirement to submit evidence on reputation. Since the evidence submitted in the opposition proceedings shows an extensive presence of the opponents undertaking, the device ‘m present in the earlier marks will immediately recall, or act as a powerful mnemonic of and constitute a reference to the highly distinctive ‘McDonalds brand. Evidence submitted for the first time on appeal cannot be taken into account. The identity of the goods is not contested. In so far as the examination of the opposition concerns the comparison of the mark applied for with the opponents earlier marks, the fame of the ‘Nike device element is irrelevant. In any case, the average consumer will not make an immediate connection between the mark applied for and the opponents earlier marks and the ‘Nike like device. The conflicting marks are visually and conceptually different. The phonetic comparison carries less weight in the overall comparison of the marks. There is no LOC. Since the signs are not similar Art.8(5) CTMR is not applicable. The appeal is dismissed.