## Facts

- SABEL BV sought German registration of an international figurative mark consisting of the word “SABEL” and a leaping feline device for goods in Classes 18 and 25 (including leather goods, bags, and clothing).
- Puma AG owned an earlier German registration for a pictorial mark depicting a leaping puma for, among other goods, leather goods (including bags) and clothing.
- The German Patent Office rejected Puma’s opposition, finding no relevant resemblance.
- On appeal, the Federal Patents Court partly upheld the opposition, finding similarity between the marks for goods it treated as identical or similar.
- SABEL appealed to the Federal Court of Justice, which questioned whether Article 4(1)(b) permits refusal where marks share only conceptual content (both showing a bounding feline) even if consumers are unlikely to confuse commercial origin.
- The Federal Court of Justice stayed proceedings and referred a preliminary question on the meaning of “likelihood of confusion … which includes the likelihood of association.”

## Issues

1. Whether “likelihood of association” in Article 4(1)(b) is an independent basis to refuse registration, separate from likelihood of confusion.
2. Whether similarity limited to conceptual content (analogous semantic meaning) can by itself establish a likelihood of confusion.
3. What method must be used to assess likelihood of confusion under Article 4(1)(b).

## Decision

- The court held that “likelihood of association” is not an alternative test; it serves to define the scope of “likelihood of confusion.”
- It ruled that mere association arising from analogous semantic content, without likely confusion as to commercial origin, is insufficient to satisfy Article 4(1)(b).
- It required a global assessment of likelihood of confusion considering all relevant circumstances, including overall impression and the perception of the average consumer.

## Legal Principles

- Article 4(1)(b) requires a likelihood that the public will be confused as to the origin of the goods or services; a simple mental link between marks does not suffice.
- “Likelihood of association” is part of the confusion inquiry and refers to association that leads consumers to believe goods come from the same or economically linked undertakings.
- Likelihood of confusion must be assessed globally, considering visual, aural, and conceptual similarity, and the overall impression created by the marks.
- The assessment should focus on the distinctive and dominant components of the marks; consumers typically perceive marks as a whole rather than analyzing details.
- The perception of the average consumer of the relevant goods is central to the confusion analysis.
- The more distinctive the earlier mark (inherently or through use), the greater the likelihood of confusion; conceptual similarity may contribute to confusion in cases involving a particularly distinctive earlier mark, but not automatically.

## Conclusion

The court clarified that Article 4(1)(b) does not allow refusal of a mark solely because the public may associate it with an earlier mark on a conceptual level; the decisive question is whether, assessed globally from the average consumer’s viewpoint and considering distinctiveness and overall impression, there is a likelihood of confusion as to commercial origin.


SABEL BV v. Puma AG (C-251/95), 1997 E.C.R. I-6191 (Ct. J. Nov. 11, 1997)