SKW Schwarz successfully represented Deutsche Liquid Werke GmbH & Co. KG also before Frankfurt Higher Regional Court in a dispute involving e-cigarettes (Case 6 U 249/16). The Higher Regional Court affirmed the protection of the “ELVAPO” trademark and ruled that the injunction order by which Frankfurt Regional Court had prohibited the competitor from advertising electronic cigarettes marked as “EVAPO” was rightfully issued.
The Court upheld the view of the applicant, represented by SKW Schwarz, that there was direct likelihood of confusion between the signs due to the identical nature of the goods and the phonetic similarity. In addition, the court affirmed that urgency was given. The fact that the competing signs had existed side by side for a long time was not demonstrating a lack of urgency. The appeal against the judgment of Frankfurt Regional Court (Case 3-08 O 85/16) affirming the preliminary injunction was thus rejected by the Higher Regional Court.
Deutsche Liquid Werke had filed a complaint against its competitor in preliminary injunction proceedings for infringement of the registered trademark “ELVAPO.” Frankfurt Regional Court issued a preliminary injunction prohibiting the use of “EVAPO” and affirmed this prohibition order in the first instance judgment. The Regional Court saw likelihood of confusion between the competing signs presuming average distinctiveness of “ELVAPO,” product identity, and average aural similarity of the respective word elements “ELVAPO” and “EVAPO.” This was also affirmed by the next instance. The Higher Regional Court ruled that visual or conceptual differences did not “neutralize” the aural similarity of the signs.
SKW Schwarz trademark lawyers Yvonne Schäfer and Dr. Philipp Heigl represented Deutsche Liquid Werke GmbH & Co. KG throughout the entire proceedings.