Thom is special
According to Thom Browne, the first name Thom (i.e., with an H) is pretty special. On top of that, the Thom Browne brand has a great fame and reputation in Europe. Consumers will therefore easily confuse or associate the Thom Browne and Thom Bonzero trademarks, according to the Americans.
Thom is common
But EUIPO easily dismisses Thom Browne’s arguments. First, according to EUIPO, “Thom” is not at all special. It is simply the abbreviation of the name Thomas in many countries. Nothing special, in other words.
Not a well-known brand
And then that reputation of the Thom Browne trademark in the EU. Much evidence that is supposed to confirm the brand’s reputation relates to the UK. Sorry Thom, but that hasn’t been an EU-member for some time, so that doesn’t count, says EUIPO. Nor does what else they have shown prove any fame or reputation. Yes, the Thom Browne brand is clearly present in all sorts of fashion publications, but market share figures are lacking, as is information on numbers sold and turnover. All in all, it is insufficient to draw the conclusion that the trademark Thom Browne enjoys high public awareness in the EU, according to EUIPO.
Last name weighs heavily
Next, EUIPO turns to the comparison of the trademarks. Will the public confuse Thom Browne and Thom Bonzero? When comparing two marks, the general rule in trademark law is that the beginning of a word mark is more likely to attract the consumer’s attention then the elements which follow it. Since the beginning of both trademarks is Thom, this seems to be in favor Thom Browne.
Personal names
However, in this particular case you have to look at it differently, EUIPO said. Both signs will be perceived by the relevant consumers as names. Surnames have, in principle, a higher intrinsic value as indicators of the origin of goods or services than first names. This is because general experience tells us that the same first name may belong to a great number of people who do not have anything in common, whereas the presence of the same surname could imply the existence of some link between those people. Therefore, consumers tend to pay more attention to family names than to first names, according to EUIPO. Therefore: no risk of confusion and no infringement.
Inspiration
That Thom Browne has a little trouble with Thom Bonzero, by the way, I do understand. This Chinese Thom does get very much “inspired” by the American Thom when putting together his collection.
Bas Kist
Image via Wikimedia Commons by Limguang Diamlimma (CC BY-SA 4.0 Deed)
