The Constitutional Court, in its decision SDO-1455 dated April 23, 2019, addressed the concept of the danger of confusion caused by a trademark in relation to its objective assessment criteria:
According to the Law on Trademarks of the Republic of Armenia, the relative grounds for refusing the registration of a trademark are defined in Article 10, Part 1, Clause 2 as follows:
1. As a trademark, the sign that is:
2) identical or similar to an earlier trademark, and the goods and/or services marked by it being identical or similar poses a danger of confusion in the public, including the association with the earlier trademark (similarity to the degree of confusion).
The exclusive right to a trademark is defined in Article 12, Part 1, Clause 2 as follows:
1. The owner of a registered trademark has the exclusive right to prohibit third parties from using any sign during commercial activities without his permission, which is:
2) identical or similar to the registered trademark and is used for goods and/or services that are identical or similar to the goods and/or services for which the trademark is registered, if the use of that sign poses a danger of confusion in the public, including the association with the registered trademark.
The Constitutional Court noted that the essence of securing the right to a trademark and its protection is to allow consumers to distinguish between the goods available in the market, preventing third parties from unlawfully using the registered trademark, thereby protecting the rights and interests of the trademark owner. For this reason, the legislator prohibits not only the possibility of unlawful use of an already registered trademark but also the use of such trademarks that may confuse consumers due to similarity. In this decision, referring to its decision in civil case No. 3-1763(ТД) dated December 12, 2007, the Supreme Court of the Republic of Armenia addressed the issue of similarity of trademarks and stated the following: "When assessing the similarity of signs, it is necessary to compare them in the form in which they are registered. As for word (letter) trademarks, these signs are generally classified among those trademarks that are perceived simultaneously in visual, semantic, and auditory ways. That is, the word trademark exists and performs its functions regardless of its additions; therefore, the two signs should be assessed independently, without considering their presentation, and only the corresponding sign should be the subject of comparison, without considering the graphic representation of that sign. In other words, in trademarks, only the main distinguishing element is the object of protection, except in cases where the additions made to the corresponding sign change it to such an extent that the main element loses its individuality and distinctive significance."
The Supreme Court, in its decision in administrative case No. VD/4241/05/11 dated July 18, 2014, stated the following: "The protection of property rights is carried out both by constitutional and international legal norms, and the protection of intellectual property rights, in addition to the aforementioned guarantees, is also carried out by the force of law."
The Supreme Court concludes that during the comparison of trademarks, the element with distinctive significance should primarily be taken into account, regardless of the presence of additional and purely symbolic elements. That is, if the element with distinctive significance is repeated in the trademark, it can be concluded that it has a degree of similarity that can cause confusion.
Based on the above, the Constitutional Court notes that both the contested provisions and the established legal practice are aimed at protecting the rights and interests of the owner of the earlier trademark as provided by the Constitution and laws. For this reason, the contested provisions of the Code and the Law do not violate the rights of the trademark owner enshrined in Article 60 of the Constitution, and the restrictions provided by the contested provisions are useful and necessary to protect the legitimate interests of the owner of the earlier trademark.
The Supreme Court, emphasizing the issue of determining the similarity of composite trademarks in legal practice, expressed a legal position according to which, when determining the imitation of composite trademarks, they are also compared with the signs (word, graphic, etc.) that are included as elements in the corresponding composite trademark (see, the decision of the Supreme Court in civil case No. 3-1763(ТД) dated December 12, 2007).
In another decision in administrative case No. VD/4241/05/11 dated July 18, 2014, the Supreme Court stated the following: "....the fact of imitation of a trademark must also include the presence of a subjective element, namely, the presence of a danger of confusion among consumers. The danger of confusion exists when the imitation leads the consumer to think that the product identified by that sign is from a manufacturer known to him previously, which forces him or may force him to choose a product that he is not looking for. Moreover, to establish the fact of infringement, it is sufficient to have 'a real likelihood of confusion', rather than 'actual confusion'.
Based on the above, the Constitutional Court notes that the contested provisions are sufficiently clear and predictable, and the procedures aimed at the realization of the rights of trademark owners meet the requirements set forth in Article 75 of the Constitution.