In opposition proceedings concerning the application for the EU figurative mark KAUFDAS ONLINE, the 2nd Chamber of the ECJ ruled that the decision of the EUIPO that this mark was too similar to the earlier EU word mark "KAUFLAND" and the earlier EU figurative mark "Kaufland" pursuant to Art. 8 I b) of the EU Trade Mark Regulation and should therefore be cancelled was upheld, thus dismissing the appeal of Kaufdas online against the decision of the EUIPO.

In the proceedings, it played a role in particular that the trade marks at issue are EU trade marks and the language knowledge of the consumers is relevant. Thus, the assessment of the likelihood of confusion must in principle be based on the perception of the two signs by the relevant consumers within the entire European Union.

It was particularly advantageous from Kaufland's point of view that an EU trade mark application can already be refused if there is a likelihood of confusion only in one part of the European Union. In the present case, the likelihood was considered to be particularly high in Italy and Spain, as the average consumer there would not attach any substantive meaning to the signs. The EUIPO had found that the average Italian or Spanish consumer would in any case not be able to make any sense of the syllables "Kauf", "Land" and "das" due to a lack of sound knowledge of German. This also benefited the opposing trade mark in the assessment of distinctiveness, as an original distinctive character was assumed here due to the lack of meaning for the consumer.

In the case of identical goods and services, a sufficiently high degree of similarity between the signs was therefore sufficient, so that a likelihood of confusion was affirmed overall.