On the left the new application for a European logo for clothing, on the right the European trademark registration of Scalpers
FOCUS ON WORD, NOT IMAGE
In its opposition to the application in the name of the German Kai Sallmayer, Scalpers invoked its trademark registration of a combined word/logo: the image of a skull with the word Scalpers underneath it. However, according to the European trademark office EUIPO, it is established case law that in the case of combined word and logo trademarks, most attention will be paid to the word element. In this case, according to EUIPO, the skull in the Scalpers brand plays a subordinate role, in part because it is not very large. The word Scalpers is leading. Therefore, there is no danger of confusion between this Scalpers logo and Sallmayer’s skull.
Scalpers also uses the logo separately (centre). In that case, a separate trademark registration (right) is actually required.
WHAT SHOULD SCALPERS HAVE DONE?
Could this have gone differently? Yes. Of course, Scalpers should also have gotten a European registration of its logo separately. This is wise, because Scalpers also uses this icon separately as a label on each garment. With such a registration, Scalpers could undoubtedly have stopped Sallmayer’s skull.