The Opposition Division found no likelihood of confusion and stated:

“In the present case, the goods and services are assumed to be identical. They target the public at large and the professional public whose degree of attention may vary from average to high. The distinctiveness of the earlier mark is normal.

As mentioned above, the signs are visually similar to a low degree, aurally identical and conceptually neutral. The similarities between the signs are limited to the fact that they represent the letter ‘r’ …”

So far so good.

“However, this letter is depicted in a very different manner in the two signs.”

Here the problem starts …

“Therefore, even taking into account the above-mentioned principle of interdependence and assuming that the goods and services are identical, this cannot compensate the different graphic depiction of the signs in the present case. The visual differences between the short signs at issue are clearly perceivable and sufficient to exclude any risk that the public – even the part with the lower degree of attention – might believe that the goods and/or services in question come from the same or economically linked undertakings.”

To summarise once again: we have two signs with a lowercase r in a circle, which differ only in colour and have identical goods. And the OD is nevertheless of the opinion that there is no risk of confusion in any case? How much more similarity of the signs would be necessary in order to establish a likelihood of confusion?

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