Likelihood of confusion: too simple to leave to the lawyers?

Earlier this week the poll closed on a simple question: is there a likelihood of confusion between these two figurative marks? By a four-to-one majority, readers of this blog declared that, in their view, the marks were not likely to be confused with one another.  The final figures were as follows: 141 voters said yes, confusion was a likely outcome; 641 (that's nearly 82% of the total 782 votes case) said no.

The poll was inspired by the Kat's surprise at the ruling of the General Court in Case T-35/08 Codorniu Napa v OHIM - Bodegas Ontañon (ARTESA NAPA VALLEY), noted on Class 46 here by Laetitia Lagarde, that there was indeed a likelihood of confusion.  The General Court was not alone in its view, since it upheld the position taken both by the Opposition Division of the Office for Harmonisation in the Internal Market and by the Fourth Board of Appeal.

tytoc collie, who was schooled on a primitive pre-harmonisation notion that likelihood of confusion, in common with likelihood of rain -- or indeed any other likelihood that was based on real-world considerations -- was a statement of probability that was based on real facts.  The modern fashion in Europe trade mark legal thinking is that, since "likelihood of confusion" is a term which forms part of the legislation which lawyers apply and interpret, its real significance is as a question of law, not fact.  You define a set of legal criteria which, if satisfied, constitute a legal state of likelihood of confusion; then you tick the boxes for the various criteria. If the right boxes are ticked, then "likelihood of confusion" exists, whether there is a likelihood of confusion or not.

The fact that the concept has been defined in such complex terms, in spite of the admirable brevity of the terminology used in the Community Trade Mark Regulation and the harmonisation directive, is both the result of too many appeals of points of law and the cause of too many more of them -- and even then the application of the facts to the law often produces decisions which are technically correct, as this decision appears to be, but nonsense in the world in which, for example, shoppers look at wine bottles with figurative marks on them such as these.

A consequence of results such as these, however technically correct they may be in legal terms, is that a lot of marks are excluded from registration even though, on a day-to-day basis, it is hard to imagine them causing anyone any problems in commercial terms.  Much is made of the claim that it is too hard to register new marks because of all the old marks that are already there.  If the existing marks took up less space, because more realistic criteria for likelihood of confusion are imposed, there would be less of a problem.

In a more sensible world, asks the mischievous Merpel, would it not be fun to dispense with the ritual of box-ticking and the pompous formality of pseudo-scientific formulations of legal tests of what the relevant consumer can generally determine at a glance?  Why not engage panels of wine-drinkers, chocolate eaters, washing detergent users, health-insurance seekers or whatever and simply ask them?